Proceedings of the Standing Senate Committee on
Legal and
Constitutional Affairs
Issue 69 - Evidence
OTTAWA, Thursday, May 6, 1999
The Standing Senate Committee on Legal and Constitutional Affairs, to which was referred Bill S-17, to amend the Criminal Code respecting criminal harassment and other related matters, met this day at 10:54 a.m. to give consideration to the bill.
Senator Lorna Milne (Chairman) in the Chair.
[English]
The Chairman: Senators, we will be discussing Bill S-17. We have witnesses from the Criminal Lawyers' Association of Ontario.
Mr. Neville, please proceed.
Mr. Mike Neville, Ottawa Director, Criminal Lawyers' Association of Ontario: Honourable senators, it is important from the point of view of the Criminal Lawyers' Association that this body, in dealing with this amendment, keep at the forefront the notion that this is criminal law. In the last 15 years a pattern has developed of attempting to use criminal law and the criminal law enforcement process as a tool for social change. In our view, the use of the criminal law for that purpose is ill conceived because it is a very blunt instrument.
Social change, including the reduction of such antisocial behaviours as domestic and child abuse or stalking, will, in the long term, be corrected more by education, public exposure and discussion of the problem. Criminal law carries with it grave consequences for the offender and hidden consequences for the community. It is often forgotten that when used as an instrument of social change, as in the context of drinking and driving, or any of the other areas I mentioned; the offender, when convicted, will suffer penalties and consequences that often exceed mere incarceration. Loss of livelihood is not uncommon when someone is convicted of a criminal offence, even if not incarcerated, because the very registering of a criminal record precludes many opportunities for employment. When people lose their livelihood, particularly when that person is the primary financial support of dependants, the social costs may outweigh the short-term benefits of convicting and/or incarcerating an individual offender. In our view, one should move cautiously when seeing criminal legislation -- particularly forceful criminal legislation -- as having a social-correcting effect.
This bill advocates the increased use of longer jail terms in instances involving convictions for what is generically called "stalking." However, advocating the increased use of jail and/or longer jail sentences appears, to us, to be significantly out of step with recent amendments to Part XXIII of the Criminal Code, which deals with sentencing; as well as with recent decisions of the Supreme Court of Canada, including the recent case of Gladue.
The amendments to Part XXIII, including conditional sentences under section 742.1, flow directly from the 1987 Archambault report. I urge, during the deliberation process of this committee, that that report or significant portions of it be reread. That report urged what the committee called "community based sanctions" as one of its principle recommendations, which is reflected in subsequent amendments. They focused on fines and restitution as an illustration of what they meant. However, by way of implementation, Parliament also added conditional sentences. This and other predecessor reports reached the conclusion, based on wide-ranging research by criminologists, penologists, sociologists, political scientists and lawyers, that incarceration, as a deterrent, is seriously overrated and in many instances is counter-productive and destructive.
Jail is the ultimate sanction. In the Gladue decision, although it is nominally a case dealing with the sentencing of aboriginal offenders, the Supreme Court addresses much wider issues and concerns. The importance of the judgment from our highest court is that, although it is an aboriginal sentencing case per se, the changes to Part XXIII, including conditional sentences, are what are known in jurisprudential terms as remedial legislation.
The difference is codification versus remedial. A codification statute is a statute that simply restates in statutory form existing laws or principles. A remedial statute is one that is meant to correct a problem. The problem was the excessive use of jail -- not simply for aboriginals but for all offenders.
On page 27 of the reasons, they say:
Thus it may be seen that although imprisonment is intended to serve the traditional sentencing goals of separation, deterrence, denunciation, rehabilitation, there is widespread consensus that imprisonment has not been successful in achieving some of these goals. Overincarceration is a long-standing problem that has been many times publicly acknowledged but never addressed in a systematic manner by Parliament. In recent years, compared to other countries, sentences of imprisonment in Canada have increased at an alarming rate. The 1996 sentencing reforms embodied in Part XXIII and s. 718.2(e) in particular, must be understood as a reaction to the overuse of prison as a sanction and must accordingly be given appropriate force as remedial provisions.
Under the federal Interpretation Act, that means the legislation is to be given a fair, large and liberal interpretation to accomplish the underlying purpose of the amendment.
The court focuses on in general terms, and in particular for aboriginal offenders, although not by any means exclusively, are subsections 718.2 (d) and (e). They are as follows:
(d) An offender should not be deprived of liberty if less restrictive sanctions may be appropriate in the circumstances.
It is euphemistically called the last-resort principle.
(e) All available sanctions, other than imprisonment, that are reasonable in the circumstances should be considered for all offenders, with particular attention to the circumstances of aboriginal offenders.
Both of those principles, or subsections, deal with the concept of jail as the last resort and what is known in jurisprudence as the restraint principle.
This is one of the most recent pronouncements of our highest court. It was rendered on April 23, 1999.
The court also points out that in interpreting all of these sections, Part XXIII, which is the sentencing section of the code, is to be given, particularly where the amendments are new, such as subsections (d) and (e) and the conditional sentence, the kind of liberal interpretation that the Interpretation Act dictates in order to accomplish the purpose of the amending legislation.
This committee had the benefit of submissions from what are generally known as interest groups, particularly representing victims. These types of groups in many instances do good work for people. Without getting into each and every detail of their submissions, albeit well intended, they invariably advocate more penal legislation and increased use of jail. These groups, through their spokespersons, are regularly quoted in the media in vehement opposition to judicial decisions that, to them, are invariably too lenient regardless of how principled and well reasoned they might be.
I read in the minutes of some of your earlier proceedings that Senator Oliver's bill does not address, at the moment at least, subject to any potential amendments, the concept of minimum penalties that has arisen in the course of discussion and debate. The use of minimal penalties is one of the things severely criticized in the Archambault report. It should be clearly understood as being the antithesis of discretion, especially judicial discretion. It ties the hands of courts in dealing with the many offenders of this type, the stalking group so to speak, who are disturbed or otherwise in need of help.
It should be clearly noted that, for example, the conditional sentence is statutorily unavailable where the offence carries a minimum penalty. Even as a remedial measure, as a form of incarceration, albeit community based, it would be unavailable if a sentence is a minimum mandatory penalty.
It is clearly acknowledged in the reasons for the Gladue decision, and in much more detail by study in the Archambault committee report, that jails do not rehabilitate. They warehouse people. In many instances, they teach people how to commit more or better crimes, better in the sense of more successful by putting them in this post-graduate crime school.
The reason, to a large degree, is that our society has paid lip service to the concept of jail as a place for rehabilitation. You cannot rehabilitate someone in a jail setting if you do not providing the funding for rehabilitative programs. There is also the problem of who they are all there with.
I can assure you that rehabilitation gets short shift in most penal institutions. Psychiatrists are available, if at all, maybe monthly. Jail is simply not properly funded in order to justify jail as a place of rehabilitation. It should be seen for what it is, a place of exclusion and punishment.
One of the specific proposals in Senator Oliver's bill would be to insert section 264 into the dangerous offender legislation -- in section 752, I believe it is. It should be understood that that is a penalty of life imprisonment. It is an indeterminate sentence. In our respectful view, it is much too draconian a response to this perceived problem. It may well be susceptible to Charter challenge under section 12 as cruel and unusual punishment.
It is well known, and can be easily confirmed, that when we had its predecessor, called habitual offender legislation, certain provinces vastly overused the section. British Columbia, under the old habitual offender legislation, had by far the highest number of jailed persons under that legislation.
Certain prosecutors took it as a device in the 1950s, 1960s and early 1970s as a measure. It leaves the person at the mercy, so to speak, at the discretion of an individual prosecutor or Attorney General and could lead quite clearly to substantive inequality. Administration of justice is a provincial matter. If a particular attorney general or local prosecutor in a major city chooses to resort to that section, now known as a dangerous offender, and is successful in a high number of instances, you will clearly have a significantly greater percentage of people serving that maximum life type sentence than you might have in an adjoining province.
I noticed in reading the minutes of previous proceedings that there was some concern about the wording of section 264, particularly in the area of mens rea. It should be remembered, as I said in my opening comments, that this is a true crime. By constitutional fiat of the Supreme Court, there must be a true mens rea in order to have a true crime.
This committee ought to perhaps know that the term "reckless" is, for all intents and purposes, an objective standard of mental state. There is a limited subjective component where, if the person has a certain degree of incapacity, it might compromise his ability to realize that the ordinary person might need to be differently judged. By and large, recklessness is based on ignoring the obvious.
That is to say, you have the necessary mental element if a reasonable person in the same circumstances would know that their conduct is offending the law. That is less than knowledge and that is not a particularly high standard. If the repetitive behaviour would be to the ordinary reasonable person not inflicted with any shortcoming or mental deficiency, aware that their conduct would have the prohibited effect, that person acting in that way will be found guilty. Reckless is in fact a significantly lower standard than knowledge, which is one of the two specified mental elements. It should clearly be understood that it is a significantly lesser standard and, for the most part, it is assessed objectively by the reasonable person standard.
There is, in fact, in our law, a fairly wide range of legal remedies for this type of conduct, and I know my colleague, Mr. Korpan, will address it in perhaps more detail in the matrimonial context. However, as a practical matter, we know that, save and except for the unbalanced stalker, the Anne Murray situation, the person who is obsessed with a public figure, the vast majority of those types of behaviours arise out of relationship situations and, to a somewhat lesser degree, employer-employee relationships.
In the matrimonial or partner-based context, this would obviously only happen in a breakdown situation virtually by definition. You would start, of course, in the context of restraining orders and the power to enforce by civil contempt. You also have the powers, in section 810 of the Criminal Code, what are generically known as peace bond or recognizance.
It should be noted that in that section, if there is a violation of a pre-existing order, the penalty is not a mandatory minimum one, however, that fact must be taken into account as an aggravating circumstance on sentence by the sentencing judge. Where there is a violation of a pre-existing order -- and it is discussed in some of your minutes -- and the prosecution is then for violation of an 810 order, the sentencing judge must, by law, weigh as an aggravating factor that that has been one of those circumstances. It is not by any means ignored even in our existing legislation.
In addition, there has been some discussion in your minutes about bail. In fact, in section 515 of the Criminal Code, which is the section dealing with the factors that must be considered on the issue of bail, in section 4.2, under section 515, it says:
Before making an order under subsection (2), in the case of an accused whose is charged with an offence described in section 264, or an offence in the commission of which violence against a person was used, threatened or attempted, the justice shall consider whether it is desirable, in the interests of the safety of any person, complainant, to include as a condition of the order that the accused abstain from communicating with any witness or other person expressly named in the order, or be prohibited from going to any place expressly named in the order.
In fact, we do have, to a degree at least, preventative sections that allow it to be reflected on penalty. There have been breaches of orders to make it mandatory upon release where charges are laid, that this section be applied. This, of course, leaves it open, should there be a violation, for the complainant to pick up the phone and call a police officer. The wording of the recognizance would be clear. The offender could be re-arrested and it would then be what our law calls a reverse-onus situation in terms of any further release. In fact, there exists a fairly wide-ranging series of powers from civil contempt up to the various criminal sanctions, which I have mentioned, which can be used without having to resort to the excessive use of jail. These may also prevent the excessive punitive impact, not just on the offender but on those who may depend upon him.
I derive the distinct impression that a great deal of the concern, and it is perhaps reflected to a large degree in Senator Oliver's submissions to the committee in presenting the bill, lies at the enforcement level in individual prosecution offices. It seems to me that it is not an issue of legislation but an issue of law enforcement and administration of justice. I frankly am surprised, and the senator may have significant evidence in support of that view of which I am not aware. I can only speak for Ontario, where I practice, but this is a province in which zero tolerance is the prevailing trend in a great number of offences, not just ones involving domestic situations.
Zero tolerance involves directives to the police through the Ministry of the Solicitor General, and zero tolerance involves directives to the prosecutors through the Ministry of the Attorney General. We have, for example, in Ottawa, courts dedicated strictly to domestic cases where the offence stream is much different, much faster, much more rigorous than the conventional criminal stream. There are specialized prosecutors and teams of support persons, and the cases are generally brought to trial much faster.
In fact, it is not really legislative change that is required, if in fact the problem is one that exists in other jurisdictions, as Senator Oliver says. It is a question of perhaps sending a wake-up call to those jurisdictions. I would be surprised personally if there were the degree of indifference, or minimization of the seriousness across the prosecution offices in this country. If that seems to be seriously out of step with what I know is the case in Ontario, I frankly question whether it is quite as bad.
The fact of the matter is that this is not the only type of offence that overly burdened prosecutors must deal with. Sometimes plea bargaining is resorted to, but it is usually resorted to, in my experience, for a reason. Rarely have I seen it resorted to on the grounds of mere expediency or indifference.
With those comments, I would turn the floor over to Mr. Korpan.
Mr. James Korpan, Chair, Saskatchewan Criminal Justice Section, Canadian Bar Association: I come before you as a lawyer who practices criminal defence law. I also practice family law, therefore, I have had opportunity to act for both the people who have made complaints and those who are the subject of complaints under the criminal harassment provisions of the Criminal Code.
I should like to thank this committee for the opportunity to appear and present my perspective. I wish to emphasize that it is my perspective. I am a member of several organizations; however, I do not speak on behalf of them. I come to offer my perspective flowing from my experience.
I must state at the outset that, with the greatest of respect, I am opposed to the amendments proposed in Bill S-17 and my position is grounded upon four concerns. The first, and perhaps the foremost concern, is one that my learned friend, Mr. Neville, went through in some detail. I adopt all of his comments as they accurately reflect my concern as well. That being said, I will go through my submissions as well, because I do believe that it is a tremendously important issue and it must be something at the forefront of your minds in considering these amendments.
We, as Canadians, incarcerate far too many of our citizens, and it is not working. Our incarceration rate is a national shame. You do not have to take my word for it. The Supreme Court of Canada, in a very thorough and considered decision, recently addressed this very issue in R. v. Gladue, the decision to which my learned friend referred.
Justices Cory and Iacobucci, writing for the court, devoted an entire section of their judgment to what they called "the problem of over-incarceration in Canada." It is a problem.
My friend quoted the conclusion of that decision. There are two other paragraphs that warrant repeating for the benefit of this committee, beginning at paragraph 52, which states:
Canada is a world leader in many fields, particularly in the areas of progressive social policy and human rights. Unfortunately, our country is also distinguished as being a world leader in putting people in prison. Although the United States has by far the highest rate of incarceration amongst industrialized democracies, at over 600 inmates per 100,000 population, Canada's rate of approximately 130 inmates per 100,000 population places it second or third highest$Moreover, the rate at which Canadian courts have been imprisoning offenders has risen sharply in recent years, although there has been a slight decline of late. This record of incarceration rates obviously cannot instil a sense of pride.
The court goes on to quote from Justice Vancise, of the Saskatchewan Court of Appeal, in the McDonald decision, where he states:
A number of inquiries and commissions have been held in this country to examine, among other things, the effectiveness of the use of incarceration in sentencing. There has been at least one commission or inquiry into the use of imprisonment for each decade in this century since 1914...
...An examination of the recommendations of these reports reveals one constant theme: Imprisonment should be avoided if possible and should be reserved for the most serious offences, particularly those involving violence. They all recommend restraint in the use of incarceration and recognize that incarceration has failed to reduce the crime rate and should be used with caution and moderation.
My learned friend pointed out that Parliament has already recognized this problem to some extent through recent amendments to the Criminal Code that allow for more community-based alternatives to the traditional approach of getting tough to solve the problem and sending people to jail. An obvious example is conditional sentences. We also have section 718(2)(e), which specifically provides that all available sanctions, other than imprisonment, that are reasonable in the circumstances should be considered for all offenders.
With the greatest of respect, I suggest that any initiative towards more incarceration runs contrary to recent progressive changes. With the greatest of respect, initiatives towards more incarceration represent a step backwards into the traditional view that incarceration is some kind of silver bullet that we can use to solve complex social problems simply by getting tough and locking away more people for a longer period of time.
Please listen to our Supreme Court when they say that getting tough and locking people away is not the answer. Please give considerable pause when considering an initiative to send people away for longer and to lock up more people. We have been there and done that and it does not work.
My second concern is with respect to this particular bill. A call for increased incarceration is particularly troublesome when it is in respect to conduct that was only criminalized six years ago. Any expansion of the criminal law represents a significant intrusion into a citizen's life by the state. A criminal record and the stigma attached to it haunt a citizen for his whole life. To further stigmatize conduct that was not even illegal six years ago as being on a par with acts as horrendous as sexual exploitation, aggravated sexual assault, sexual assault with a weapon, and so on, is too much too soon. Again, it was only six years ago those very acts were not even illegal. We now want to put them on par with these other, horrendous acts. I suggest that the intrusion is happening too quickly and that we have to let the substantive offence evolve further before we can even consider putting it on that level.
A weighing of the costs and benefits of the practical effects of the proposed amendments will show that we are inflicting too much pain for too little return in terms of our stated objectives. This brings me to my third and fourth concerns.
My third concern is that the proposed amendments are not necessary and will not make any difference when put into practical effect. The truly dangerous offenders who exhibit this type of behaviour will almost always be guilty of more serious offences that will place them at greater jeopardy, independent of the penalty for criminal harassment.
My friend went through the many other alternatives already available. I have had the benefit of reviewing the transcripts of some of the hearings to date, and a constant theme is that the police and prosecutors do not understand the dynamics involved in this type of offence and that they lack the knowledge and resources required to identify the truly dangerous offenders. That has not been my experience in representing people charged under these provisions. Risk assessments are normally done in order to get bail before sentencing. Often, if the Crown does not request it, the judge will ask for a predisposition report that will, in many cases, include a psychiatric assessment. Considerable work is also being done to identify the truly dangerous people who warrant some incarceration and to separate them from the less dangerous people who do this sort of thing.
If there is a problem with the prosecution of these offences, then again, as my friend pointed out, I would suggest that we address the problem with the prosecution and the administration of justice. Increasing the penalties will not solve the problem. Increasing the penalties will not make the Crown prosecutors better educated and so on about the dynamics involved in this type of offence. If that is where the problem lies, then that is where the resources should go in order to solve the problem.
If we want to solve this problem, is not something that we should be addressing through the criminal justice system. We talk about educating the police, judges and prosecutors. What about educating people's families, doctors, counsellors, clergy, and so on? These are the people in the community who can make a difference, who can nip these things in the bud and see that action is taken when it is warranted, rather than six months after the fact when it has already spiralled out of control. Again, we must look at societal problems as something that must be solved in the community. By the time they get into the criminal justice system, we have already dropped the ball.
My fourth concern deals with this very issue, namely, a more community-based approach to the problem. The vast majority of people charged with harassment are not Paul Bernardos, nor are they habitual criminals who have been incarcerated on and off since their teen years. They are not the Anne Murray stalkers. Most of the people charged under these sections are harmless, lovestruck Romeos or ordinary men who persist a little too much in their efforts to discover why, after 15 years of marriage, they have been told by their spouse that they can no longer live together and that they can no longer see their children on a daily basis.
In many ways, their actions are nothing more than an understandable reaction to a significant adverse event, specifically, the end of a long-term relationship. They are the type of people who have no criminal record and will have no involvement with the criminal justice system over and above this one offence.
I have seen the benefit in my experience of having two parties meet in a controlled setting so that the perpetrator can learn the relationship is over once and for all. I have seen this, not through the criminal system, but oddly enough, through the family law and divorce courts. In Saskatchewan, our divorce courts require mandatory mediation sessions for both parties. Where there is a concurrent criminal proceeding, or where there is a suggestion of abuse -- not necessarily physical but emotional or psychological -- the complainant always has the option to opt out of that. No one will make a victim sit down with her stalker and I stress that I am in no way suggesting we should do that. However, you would be surprised how many women want to have the opportunity to sit down with their estranged spouse -- with the stalker, if I can use that word -- in a controlled environment where they can say once and for all, "Look, you have to understand. It is over."
It is a safe, controlled setting that some of my female clients have described as "empowering."
They often come away from these mediation sessions saying, "I do not think mediation is for me. I would rather negotiate issues of property, custody and child maintenance through the lawyers, or if we cannot agree, go to court, but I am glad I went to that mediation session because he finally understands it is over. That, in and of itself, was worthwhile." That is something that is not even available under the criminal system. It comes by way of a parallel proceeding in the divorce courts. With the understanding that the relationship is over, there comes an end to the harassing behaviour and unacceptable conduct.
Alternative measures are ideally suited to this type of offence, especially in a domestic situation where the victim is willing to participate. Again, I wish to stress that.
Ironically, the code makes provision for the use of alternative measures in section 717. However, the formal use of these alternative measures in a criminal context is not available because it happens in domestic situations. Since it is seen by some as a perpetuation of the abuse, for that reason we do not want to put a victim with her stalker. Again, I do not think anyone would suggest for one moment that we should force that on someone, but you would be surprised by the number of women who want to sit down with their estranged spouses for that meeting.
I suggest that there should be room for these alternatives when we are dealing with less serious examples of the offence, and again, where the victim is willing to participate.
I have had the benefit of reading the transcripts of some of the earlier proceedings. On April 21, Senator Fraser asked what was going wrong when of all the charges laid in stalking cases, only 50 per cent were going to trial, and of those, only 27 per cent were convicted. I suggest that this shows there is nothing wrong. I suggest this demonstrates an appropriate use of prosecutorial discretion in order to solve the problem. I suggest that what most likely happened in many of those cases is that the act of laying the charge brought about a dramatic change in behaviour and an end to the harassment, which is probably all the victim wanted in the first place. Rather than condemning this appropriate use of prosecutorial discretion, we should be praising it and formalizing it through a specific sanctioning of alternative measures for this type of offence.
I suggest this is particularly important when children are involved. The process that the parties go through in the first few months following the breakdown of a marital relationship sets the stage and tone for the relationship that those people will have until the children reach adulthood. I use the word "relationship." They will not live together any more and he will not be contacting her every day. However, it is only in very horrendous situations that we remove a parent entirely from the children's lives. That is recognized as something we should not do in the Divorce Act, which specifically says that it is in the children's best interests to have as much contact as possible with both parents. Unless it is an example of egregious conduct, we will not be cutting a parent out of a child's life.
They will no longer be in a husband-wife relationship, but they will have to be in a working relationship for the sake of the children. When things start off in a confrontational fashion, or when blame is being assigned, we know how that working relationship will end up. It will not be a very good one. It will be full of hate, bitterness and resentment, all of which impact adversely on the children.
In appropriate cases, if we can substitute the criminal system for one that allows for a more problem-solving approach, perhaps in a mediation session that is not focussed on blame, but rather on solving the problems and changing behaviour, it sets the stage for a better working relationship. The children of this country need that, especially when going through a difficult time at the end of their parents' relationship.
Those are my submissions.
Senator Andreychuk: I wish to make two comments. I heartily endorse what you have said and I am glad you are here, not just because of this bill, but because you have restated that the courts are not where we should be solving our community problems. We resort to the courts entirely too quickly. Many of these are community-based problems to be solved by other means in the community.
Many stalkers are embittered people who want to find out why a relationship ended. They go on to pursue what they should have been doing to keep the relationship going. They work at it after the fact. Twelve years in family court taught me that. From time to time, there is a dangerous offender in the midst of all those others. Do you believe that there needs to be some way within the criminal system to identify them and to protect the public?
The point you make is that we resort too often to the courts. I know many stalkers are men, and I dealt with them. It seemed to me that they were oblivious to the fact that there were problems in the relationship. Once it ends, they start commiting all this foolishness in order to continue the relationship. I do not think we want to see those people in the courts. I would like to see them diverted.
In the midst of those people, there are some who resort to violence through emotionalism. Why do husbands kill wives and wives kill husbands? Other than passing this bill, do you think there is something else we should be doing in the Criminal Code to ensure that we do not have deaths occurring as a result of stalking, which happens from time to time?
Mr. Neville: There will always be crime in society. If we did not need the Criminal Code, we would be covered by the 10 Commandments. I could have a good practice as a criminal lawyer defending people who broke the 10 Commandments, one of which is, "Thou shalt not kill." We will always have extreme situations. I do not think the criminal law, or any group of people purporting to live in a civilized society, will prevent crime. We will always have unacceptable behaviour by some members of society. I do not think having the criminal law and draconian penalties will change that.
We can look at other areas. I appeared earlier this year before a House of Commons committee concerning the proposed changes to impaired driving laws, where I was asked a similar question. The fact is, even though we have gradation in penalties and mandatory jail sentences, the behaviour of chronic drinking drivers has not changed because that is their problem. They are alcoholics and ill. Many of these people who commit the most outrageous acts of violence on a former partner may commit that act regardless of what the Criminal Code says. It is part of human existence and we should not expect the criminal law to prevent it.
Looking at the stalking legislation, the fact is the Crown has an option here. If it is a particularly serious offender, stopping short of homicide, of course, which is covered by different sections of the code, even a five-year penalty is not a short jail term.That is a federal penitentiary sentence.
There is a sentencing principle that the maximum, or close to the maximum, should be used or reserved for the worst offence in the range of offences by the worst offender in the range of offenders. In fact, in the appropriate circumstances, properly prosecuted by indictment, I would have thought a penitentiary term of up to or close to five years would send a pretty strong message to most people. If it does not, frankly, human nature and society being what they are, nothing will.
It may be simply a question of law enforcement and proper proof of the case. If it is really egregious behaviour, the Crown can go by way of indictment rather than summary conviction.
Mr. Korpan: To echo that, I point out that in the Province of Saskatchewan, the average sentence for manslaughter, a very serious offence, is six or seven years. We already have a penalty that approaches what is routinely handed out for the taking of another person's life. Five years is not an insignificant sentence.
In terms of what more could be done in the courts, I would point to what is currently available. In the first instance, where we have a first-time offender charged with this offence, it is always open to the Crown to oppose that person's release and to ask for a bail verification report, at which time there can be some element of a psychiatric assessment performed. Perhaps some of the more dangerous people can be identified at that stage.
If the person is convicted, it is appropriate to prepare a predisposition report at the sentencing stage, and an even more detailed assessment can be done at that time to decide whether this person warrants a lengthy period of incarceration or whether he is one of the more harmless offenders.
What could be done? More resources could be devoted to the prosecutor's office in terms of education on the dynamics and on the red flags that distinguish someone who persists too much after the end of a relationship from someone who is truly dangerous. Perhaps the expertise that is available in the corrections system, where they do detailed risk assessments before allowing people out on parole, could be borrowed or transferred over to the administration side in the departments of justice across the country. Better use could be made of those resources.
I think that everything we need is already there. It is just a matter of ensuring that it is used to its full extent. The only other alternative is to lock up everyone ever charged with this in the fear that one of them might some day go a little bit further. Of course, we cannot do that.
Mr. Neville: In my earlier, opening comments, I addressed the question of minimum sentences and the fact that a minimum sentence, by statutory direction, precludes the use of conditional sentences. That is not without some significance. The conditional sentencing provisions in the code make it possible for a judge to require the accused, on pain of incarceration for the full length of the term, to attend a treatment program approved by the province.
Since probation, by jurisprudential interpretation, is to be rehabilitative, treatment programs cannot be forced on an offender. They can be compulsory under the conditional sentence because it is seen as a community type of incarceration and therefore a punitive, not a rehabilitative term. That is how it has been interpreted. In fact, a treatment-counselling, psychiatric intervention type program can be made part of a conditional sentence, with the consequencess for non-compliance that the code provides.
You cannot impose a conditional sentence where the penalty is a minimum penalty. Introducing a minimum penalty to stalking would preclude the use of a conditional sentence and the ability of a judge to force a treatment program on the offender. That is a very practical and legal basis for this committee to, in my respectful submission, not go down the route of minimum penalties. It takes away a very valuable sentencing option that can be forced on the offender.
The Chairman: I would point out that in the bill Senator Oliver has put before us, there is no provision for minimum sentencing.
Mr. Neville: I mentioned it because in some of your minutes, there seemed to be a developing momentum towards that route, although it would require an amendment. The topic was explored and seemed to generate a fair amount of support or interest in the committee. I point out that it has very significant legal ramifications. In fact, it may be counter-productive to the very purpose of the sentences.
The Chairman: Before we go any further, I would advise that we will get copies of the Gladue decision for everyone so we can take a look at it.
Senator Nolin: I have heard you, and I am trying to reconcile your testimony with other testimony that we have heard suggesting that the description of the crime is too loose. Do you maintain that the current description of the crime is satisfactory?
I do not have the numbers, but I do not think many stalkers are charged. I heard your comment about that, Mr. Korpan, but I do not buy it totally. I want to hear more professional opinions.
Mr. Neville: In my first comment, I focused more directly on the mens rea or intent component of the section, which is looking at the conduct from the standpoint of the alleged offender. My submission was that the two types of mental element that are specified in the section are "knowing" and "reckless." I think it is important that this committee understand that "reckless" is in fact a relatively low standard for the Crown to meet. Recklessness is measured by the standard of a reasonable person in the same circumstances.
You heard that alcohol use or drunkeness does not apply to recklessness. An intoxicated offender is, by law, not considered to be a reasonable person because a reasonable person is not an intoxicated person. The recklessness standard is one based on an objective assessment of that conduct as seen through the eyes of a reasonable person. If a reasonable person would constantly follow, communicate, beset or watch someone, he would have great difficulty getting himself or herself acquitted.
From the standpoint of the complainant, the alleged victim, I gather from previous speakers that there seems to be some degree of concern with the phrase "causes that other person reasonably in all the circumstances a fear for their safety or the safety of another person." Again, it is a reasonableness standard. It is there to preclude conviction in a case where someone frivolously claims fear. There must be something in the bill that introduces a degree of balance. Someone should not be able to come forward and say that because she saw her ex-partner walking up and down the street on a regular basis, perhaps because he lived around the corner in a joint-custody situation, she is in fear. That is not reasonable, and this introduces a degree of balance.
If someone is repeatedly following in the sense I think most reasonable judges and normal people understand, I do not think it would take much for a judge to conclude that the purported victim lives in reasonable fear. All that section does is allow a trier of fact to assess all of the circumstances as seen through the eyes of the accused, who is held to a reasonable person standard, and through the eyes of a reasonable person in the shoes of the complainant. Therefore, we will not have frivolous complaints.
I can assure you that in the context of threatening allegations as they pertain to the threatening section, or assault as it pertains to the domestic assault section, there is, without question, a pattern of abuse of complaints where there is a custody battle or a serious fight over assets and/or custody. It is not uncommon. You may wish to hear from family law practitioners as a group in a more full sense.
The laying of criminal charges as a tactical measure is by no means unheard of. There must be something in there to prevent that type of abuse of the criminal process and introduce a sense of balance. It is a question of evidence.
Senator Nolin: You are not suggesting that all complaints that do not evolve into a specific charge are frivolous, are you?
Mr. Neville: No, I am not.
Senator Nolin: How do you reconcile that?
Mr. Neville: Here is my concern.
When I read the comments of previous presenters -- and Ms McPhedran may have been one of the principal presenters -- they seem to be inviting this committee to look at the legislation. I believe Ms McPhedran says explicitly that the conduct should be looked at only through the eyes of the purported victim. If that person says "I felt fear and a lack of safety," that should be the end of the question. That element of the offence has been proven. The legislation says that is a start, but when the person asserts that state of mind, it must be to a reasonable degree.
Senator Nolin: That may have been her intent, but that is not the way I understood her testimony. She was not suggesting that. We must keep in mind the two mental attitudes of the victim and the stalker, or the presumed stalker.
Mr. Neville: On page 18 of her testimony, she stated:
It is important to bear in mind that charges are laid as a result of a victim coming forward and articulating the experience of the harassment. That is also why we feel "reasonably" should be removed from the section. Once the experience of the victim leads that person to go to the police and seek the help of the justice system, coming up with a measure of the degree to which they have been impacted is not as relevant as responding to the reality that they are there and have experienced the threat.
She suggests that the word "reasonably" should be removed.
Senator Nolin: I have never been harassed or stalked by anyone, but a wink by one person in the direction of another, if it is repeated, may be construed as harassment.
Mr. Neville: It would not fall within the parameters of repeatedly following, repeatedly communicating, besetting or watching the dwelling house, or engaging in threatening conduct, unless the wink could be interpreted as threatening.
Senator Nolin: The mental attitude of the victim and all the circumstances will need to be taken into account.
Mr. Neville: Exactly, which is not unique in criminal law or any other law.
Senator Nolin: Of course. We are dealing with the world and human beings.
My question is still the same: How can we reconcile that more than half of the complaints never go to court? Is it because, as Mr. Korpan suggested, it is enough to calm the stalker, the attitude changes, and everyone goes home happy? Or is it that the Crown is faced with a crime too complicated to prove, and they say, "My workload is too heavy, and I will not get into that."
Mr. Korpan: It is never just one thing. It is usually a combination of factors. In my experience, it is often a combination of this conduct barely criminalized within the meaning of the section. It is on the edge of whether it would even constitute criminal harassment. The conduct has stopped. Perhaps for some greater peace of mind a peace bond can be put into effect, and the victim is happy with that. That way the Crown is able to engage the force of the criminal law by having some type of order in place restraining that person from contacting the victim any more, without the prospect of perhaps going to trial and losing, and without going to trial and engaging in the full intrusive nature of a trial on the alleged stalker's life as well. It solves the problem, and nothing further needs be done.
Senator Nolin: If there is a peace bond, that means a procedure is introduced. My question is that many events are not sufficient to start procedures. We heard that in our testimony.
Mr. Neville: That would apply to virtually any criminal charge. It is a question of evidence and how the elements are defined. If the evidence is not there to meet the particulars of the offence, the Crown prosecutors simply do not proceed.
I think you are getting at a different problem, one which Mr. Korpan addressed. In these situations, because there is a personal connection between the parties, an alternative solution is arrived at.
The people advancing these statistics are advancing them in support of a zero-tolerance philosophy. My experience has been that zero tolerance is a dangerous and inappropriate philosophy in a system as intrusive and destructive as criminal law.
I have been a member of the bar since 1972. One of the most unfortunate developments in the criminal justice system in the last 15 years has been politicization to accomplish social purposes through the blunt instrument of criminal law. It is inappropriate because it takes away one of two inherent factors that must exist in any healthy criminal justice system -- discretion and judgment. If you take that away from police and prosecutors, and you add minimal penalties to take it away from judges, then the message is, "Do not pass go, do not collect $200 and go straight to jail." I do not think that is what we want or ought to have in a justice system, but that is where zero tolerance leads.
I will not take up this committee's time with anecdotal evidence, but I can tell you that as a criminal lawyer -- and I am sure that I am typical -- we have had many files in our office where the allegation of domestic assault was frivolous in terms of the real substance of what happened. The allegation was so motivated by other interests or agendas as to be shocking. I have had senior police officers tell me off the record that they have gone into situations where they felt that proceeding criminally was not appropriate in their best judgment, but they had the directive and they did so.
In most instances, when the police go to a domestic situation, they do not even seek a version from the alleged offender, usually the male. They do not even bother to obtain a statement. They do not care what his version is. Their position is: tell it to the judge. That is what zero tolerance leads to. It leads to very destructive, frivolous prosecutions.
I will give you a quick example. I had one instance where the complainant alleged certain conduct by my client. She put a version of it in an affidavit in the matrimonial dispute. We interviewed neighbourhood witnesses and were able to satisfy the Crown that the allegations that she transposed into a civil affidavit for purposes of that proceeding were false. We proved them false.
Senator Oliver: Did you sue for perjury?
Mr. Neville: Do you know how many times complainants are charged with perjury? Almost never. It is one of the least-laid criminal offences in the Criminal Code. Police officers have been found to have perjured themselves, in effect, and they are never charged. Nor are complainants ever charged who have made false allegations. It is the least-used device I have seen to correct injustices. Ask Donald Marshall.
Senator Grafstein: The last witness raised the issue I want to address, and he has done it in an interesting way. In effect, the evidence we heard before, to my mind, raised the issue you have now covered, which concerns the nature of the criminal justice system. In other words, when is it in society that the criminal justice system, which is the ultimate weapon in the hands of the state, should be deployed to deprive an individual of his citizenship status? What you are doing is stripping him of particular rights because of a criminal record. It is an ultimate and, I think you put it very well, a blunt instrument.
Last week we heard from at least one witness that we have to send a message. I think you are arguing that the Criminal Code is not necessarily the best way to send a message.
Are you suggesting that there is an onus on those who wish to amend the Criminal Code to satisfy Parliament that all the other means of dealing with the socially aberrant conduct, if that is what it is, that are not harmful have been exhausted?
Let me give you an example. We have the civil justice system and the criminal justice system. We have criminal injunctions and we have civil injunctions. We have the family law court and we have the children's courts. We decided that we should not deploy the criminal justice system with respect to children, except very reluctantly and under great barriers.
Are you saying that the onus is upon the proponent, and that if we are to change the Criminal Code, the bluntest instrument we have available to us, we have to satisfy ourselves that the other intermediate steps have been exhausted or have failed to offset the aberrant social conduct?
Mr. Neville: In a word, I think the answer is "yes."
Senator Grafstein: Let me explore that with you.
Mr. Neville: I will add to that. There is a response. Stalking behaviour was seen to be, and rightly so, socially aberrant, and there was a response. The code was amended in 1993 to put this section in. We are early into the life of that section to be tinkering with it.
Senator Grafstein: I heard Mr. Korpan's evidence on that and I understand what he is saying. He is saying that the criminal law needs time to settle in, to see whether or not it establishes itself as a different level of social conduct. It does not happen overnight. The Criminal Code is the first step.
I think you are also saying -- and sometimes we forget this -- that each time we add another responsibility to the criminal justice system, it is an indirect tax and tends to drive out other things that it is doing because it can only sustain so much. To eliminate this, we are sticking people in prison, and Canada's incarceration rates are among the highest in the western world.
Let me deal with the preliminary or intermediate steps one must take. Mr. Korpan, you mentioned mediation as a salutary method of dealing with so-called aberrant social conduct, conduct that may be aberrant but not criminally aberrant. Have you thought through other things like a non-criminal probationary methodology where the criminal courts say, "We will put you on probation but you will not be criminalized"? Is that appropriate?
Mr. Neville: We have that in the section 810 situation. That is exactly what that is. The recognizance entered into, be it under section 810, 810.1 or 810.2, in effect, is precisely that. It puts the person under court-ordered control without a criminal conviction.
Senator Grafstein: Let me test this again. Damages are another means we have established under the common law. The way we penalize people for aberrant private conduct is to have a civil suit of damages. The courts also use criminal damages, although very rarely. What do you think of that as an alternative to depriving a person of his or her liberty?
Mr. Neville: Certainly in the Archambault report, when they discussed community-based sanctions, the two they stressed and fleshed out in more detail were fines and restitution. I think probably the more appropriate term is restitution rather than damages, but that is in effect what it is. It is a financial compensation.
Senator Grafstein: Perhaps you can give the committee a few sentences on how you think it works.
Mr. Neville: Essentially, the victim presumably would be in a position, with some degree of certainty, to quantify the economic loss.
Senator Grafstein: Would that constitute pain and suffering?
Mr. Neville: The concept of pain and suffering, which is covered under general damages civilly, is foreign to the criminal law because it is a bit nebulous. There must be a more precise quantification for purposes of restitution. I suppose, as a practical matter, in the stalking scenarios, if we thought about it long enough, we could think of instances where there might be a direct pecuniary loss. If the person who was stalked withdrew socially or employment-wise to a degree that they suffered an out-of-pocket loss, from reduced income, there is the figure. If the person was so afraid that, for a period of three months, she withdrew from work, then presumably three months' salary would be a way to quantify the loss.
Senator Grafstein: In your experience, has the criminal injunction been used as opposed to probation in these cases under the existing code? This would be where the judge would say, "You are enjoined from directly or indirectly dealing with the victim in a particular circumference." Has that been used?
Mr. Neville: Yes, that is what a section 810 order is.
Senator Grafstein: Has that been successful, at least in your anecdotal experience?
Mr. Neville: Three practitioners in our office have had clients that were the subject of a section 810 order. I cannot think of any in recent years that were prosecuted for breach.
Senator Grafstein: You are saying that the code as it stands has the appropriate remedies, and that the problem is that the appropriate remedies sometimes are not called into play by the courts?
Mr. Neville: Yes. Under the section 810 regime, the court can, in fact, restrict movement and access to areas. The defendant can be prohibited from being at or within a distance from a place specified in the recognizance, and can be prohibited from communicating in whole or in part, directly or indirectly, with the person on whose behalf the information was laid. There can be geographical restrictions and communication restrictions -- it is all there -- with the enforcement of prosecution for violation of that order.
Breach of recognizance can be prosecuted by indictment or summarily and, if by indictment, is punishable by a term not exceeding two years.
The mechanism is there. The geographical restriction is there. All kinds of ingenuity can be used in crafting the wording of the orders to accomplish exactly that purpose. That is in effect a criminal injunction.
Mr. Korpan: The bulk of people who enter into a peace bond do so voluntarily as well. We need not go through the necessity of a hearing, although you can impose a peace bond on someone, kicking and screaming, if you will. That is usually not the case. Usually they will enter into a bond voluntarily.
In my experience as well, and again this is anecdotal evidence, most people who enter into these bonds do very well and tend not to breach. Whenever you can come to a solution where the person is agreeing to a restriction and, therefore, has some ownership in, the person is far more likely to abide by the terms of that resolution than by one that is imposed upon them.
Senator Grafstein: In summary, the object of the proposed legislation is already in the code. Is the problem that perhaps all those tools have not been fully deployed by the courts for whatever reason?
Mr. Korpan: Exactly.
Senator Beaudoin: Mr. Korpan, you said that we already have too many people in jail and that may be so. However, we may need to create new crimes. Criminal law is always evolving.
This case is an example. We have debated in this committee for a long time about whether we should be more severe or less severe. The young offenders problem comes to mind. We will face that problem very soon again.
In Quebec, there is a different point of view than in the other provinces. I have the greatest respect for that view, as well.
I do not understand your disfavour for this bill. This offence must be taken very seriously. I am inclined to think that the bill handles the offence in a fair way. Is it a question of philosophy, that we have too many people in the jails, so we should not go in that direction? Or should settle those problems case by case?
Mr. Korpan: We should settle them case by case. My last three submissions focused on more specific things dealing with this legislation. As a general principle, as a matter of philosophy, we must look at our record in Canada of using incarceration. Has it achieved what we wanted it to? The Supreme Court, in a far more considered fashion than I could ever offer, has said that it has not worked. We are locking away too many people. That, in and of itself, should put the onus upon us to look extremely carefully at any proposal that calls for more imprisonment. Will this bill really do what we want it to do? I suggest in this case that it does not.
Senator Beaudoin: That is then not the proper remedy, having regard to all the circumstances?
Mr. Korpan: Correct.
Senator Beaudoin: It may be in some other cases but not in this one, you say?
Mr. Korpan: In any case, I would be wary of any call for more incarceration, particularly with respect to the criminal harassment provisions.
Mr. Neville: I suggest that it would be worthwhile for the committee to hear, if possible, from each attorney general across this country.
I was quite surprised that there is a perception, if not a reality, that prosecution offices across this country do not take this offence seriously. That is out of step with my personal experience, at least in this province.
Even if you receive written submissions, you should hear from the attorneys general, the law enforcement arm, from coast to coast. There are only 11.
The Chairman: We have requested that and we have begun to receive some feedback. We have heard from Saskatchewan, Manitoba and B.C.
Mr. Neville: I suspect that they would be surprised, if not offended, at the suggestion that this area, which is really an adjunct of domestic abuse, is regarded as less than a serious matter. I was very surprised to see that.
Senator Fraser: I find myself a little puzzled by your arguments. We are all in agreement that we do not approve of excessive imprisonment. Neither do we like the idea of locking up people who are just a little lovelorn and who do not understand and who try to make one or two phone calls to ask to work things out. The concern that led Senator Oliver to present this bill is not with those people. It is with the other people, the admitted minority but dangerous minority who go beyond that.
You know as well as I do that people, in a large majority women, are killed every year in this country by people who began by making phone calls and hanging around their places of employment.
This bill would come into play only after the accused had been found guilty. The proposals by Ms McPhedran and some other witnesses for minimum sentences would come into play only on repeat offences or on the breaking of the peace bond.
I am from Montreal. We have seen too many instances where husbands ignored court orders, sometimes repeated court orders, to stay away from their wives. A true dilemma is faced by anyone trying to draft appropriate public policy.
I am not quite sure why you are so strongly opposed to the concept that, in cases where guilt has been established and where we are dealing with a repeat offence, imprisonment would be appropriate. We are talking about situations where reasoned discussion has failed.
Mr. Neville: The legislation, even as it currently exists, does provide for jail, six months summarily or five years by indictment. The penalty of jail is there. The discussion is almost as if jail does not exist as an option. It is the highest option after going through probation and the like, but it is there. It can be used in the appropriate cases.
It seems to me that this is just a matter of evidence and perhaps advocacy by a Crown prosecutor. It is an adversarial system. Perhaps in some instances the accused was well defended and got a lesser penalty than he may have had if he had not been so well defended. That is another matter within the adversarial system and within the justice system as a trial process, but we do have penalties that include jail.
The suggestion of a minimum jail sentence, by definition, takes away the concept of discretion and, more importantly, takes away the sentencing option of enforced treatment under a conditional sentence regime. The judge cannot make it mandatory on straight probation but he or she can do so on a conditional sentence. However, you cannot get a conditional sentence if there is a minimum penalty.
You have taken away an option. If you accept the proposition that in many of these instances the offender is "disturbed," that may mean an obsessive-compulsive disorder right up to a psychopathic personality. If that person is in need of professional intervention, it can be forced on him or her with these types of sentences. You cannot compel it otherwise. There are hidden dangers in things like minimum penalties and taking away options that may be useful.
Senator Fraser: Do you have any information on how often treatment is ordered?
Mr. Neville: No, I cannot tell you specifically. That might be something that is available to you through Statistics Canada's Criminal Justice Statistics Section. They get copies of all these things and they might be able to tell you how many times the mandatory treatment provision is used. It is a relatively new section. It only started to be used in September 1996. We are two and a half years into that regime. How often it has been used statistically and with what effect, I do not think has been studied. They are probably accumulating it now and can probably tell you.
Senator Fraser: In my province, to the best of my knowledge, while the prisons are overcrowded, there are even fewer resources available for treatment within the judicial system. It does not happen at all, even when ordered.
Mr. Neville: I would venture the thought that incarcerating, albeit for a fixed period of time, might goad retaliation, whereas professional intervention might do something.
Senator Fraser: If one got it, yes.
Mr. Neville: You can have correctional intervention, court ordered through a conditional sentence.
The Chairman: We will try to get that information for the members of the committee.
Senator Bryden: If it can be said that in the U.S. there is a propensity to litigate, it can be said in Canada that there is a propensity to legislate. Legislation is the answer to every social problem. You said that the Criminal Code in many instances is a blunt instrument for solving social problems.
Not only is it a blunt instrument, it is also a societal crutch, in my opinion. The Criminal Code allows us as a society not to face the real social issues and to put in place the structures that are required.
What structures or areas could be improved that would help to address our significant social problems?
Mr. Korpan: When I am acting for a victim on the family law side, they have come to see me because they have been to their doctor and have seen the sign on the wall: "If you are in an abusive situation, you can talk to me."
The doctors are starting to get more sophisticated now about the types of problems that people are having in the homes, not just with stalking, but with all types of domestic offences and even conduct that does not constitute an offence but that is still intolerable.
Often the doctors are not only the abused person's physician but also the husband's physician. I have seen doctors act as mediators in some of these cases. Doctors have been a good resource for me to draw upon as counsel as a way of resolving things when people are in that early very hot and heavy stage of a marital breakdown, the first few weeks when everything is very volatile. Certainly, dealing with this as a health issue would be one way of addressing the problem.
Other things might be educating clergy and counsellors and making more counsellors available, working with community groups like the YWCA and the YMCA in order to get the message out. In Saskatchewan there is an awareness campaign about violence against women and how it is no longer appropriate to remain silent.
Ten years ago, if you heard the neighbours arguing and getting out of hand, that was their business. Very few people would take that view anymore. Most people pick up the phone and call 911 in the same way they would if they saw two men fighting on the street in front of their house.
I do not know if those work. I have seen some anecdotal evidence that would suggest they do. I know that sending people to jail does not work, and our Supreme Court knows that as well.
Mr. Neville: I will start by picking up on the very anecdote that you started with, senator, that being the tragedy in Alberta. One of the elements of its aftermath that struck me the most was the response of the dead boy's father. There is a theme that is talked about, particularly by victims' groups, of closure, healing, et cetera. In the many instances in which I have seen people in conflict, I have always thought that keeping the flame burning -- the flame of retribution, of getting even, of punishing -- is not a way of healing. I believe that there must be a period for grief, for mourning, and that you must then get on with life. The response of that father to the death of his son, going so far as to pray for the boy who shot his son, was one of the most positive and truly healing acts I have ever seen.
However, that does not motivate some of the groups that have appeared before you. I regret to say that they have a retributive agenda, and I do not think that works. I believe that education and public awareness works.
A good illustration of that is what we have seen in the last 15 years with regard to drinking and driving. My children were made aware, through programs in school and elsewhere, of the ills of drinking and driving. When I was growing up in the 1950s and 1960s, everyone laughed when someone said, "I was so drunk, I cannot believe I made it home." Very few people would tell that kind of story now because it is socially unacceptable. Our children and the generations behind them are being taught about socially unacceptable behaviour by being exposed to its consequences and its wrongness.
In many instances, confrontational and adversarial behaviour, rather than restorative behaviour, is causing more harm than good.
My friend Mr. Korpan comes from Saskatchewan where the restorative approach of native justice is seen as a positive way to deal with a social ill. It includes the community as part of the solution. The offender is not put in the position of owing the community. The offender is put in the position of working with the community to become a healthy member of it.
Restorative justice is addressed to a degree in the Gladue decision. It is in the amendments. It is found in section 718 under the heading "Purpose of Sentencing." Two of the purposes itemized are to provide reparations for harm done to victims or to the community and to promote a sense of responsibility in offenders and acknowledgement of the harm done to victims and the community.
You do not normally get someone to act in a restorative fashion by punishing them excessively. They usually have to get over that problem before they realize that they have a greater responsibility to themselves, those they have hurt, and their community. It seems to me that restorative justice, combined with shining a light on the problem, will accomplish more than a Band-Aid solution like prison. We have seen that that does not solve the problem.
Senator Nolin: Thank you for appearing before us.
In 1996, a document was prepared for the Department of Justice. It is not a document supported by the department, but it was prepared for them. It is a review of section 264. Do you have access to that?
Mr. Neville: It is referred to in your minutes, but I have not seen it.
Senator Nolin: I will read to you some of the conclusions from page 67 as follows:
The numbers of criminal harassment charges withdrawn or stayed by the Crown, and the numbers of charges withdrawn in exchange for a peace bond, are very high in comparison to outcomes for Criminal Code charges as a whole and for most specific categories of crime. The fact that almost 60 per cent of criminal harassment charges are withdrawn or stayed cannot be seen as conveying the kind of strong message that was intended by the so-called anti-stalking legislation. The fact that 75 per cent of those convicted of criminal harassment received either probation only, or a suspended sentence, also compares negatively with figures for most other crime categories in terms of strength of sentence. The experience to date conveys the message that offenders will, in the large majority of cases, be let off with no penalty, and that even if they are convicted, the justice system will impose only a mild rebuke. A previous criminal record, a record of violence against the same or other women, or a record of breaching court protective orders by no means assures a stronger sanction from the justice system.
It may be that you will not agree with that conclusion, but I cannot be unaffected when I read that. Should we do something? You say that the Criminal Code is not the problem, that other jurisdictions should try something else to solve the problem. I believe that it is still the intent of Parliament to make stalking an important offence that we will not tolerate.
Taking into consideration the conclusion which I have just read to you, should we do something with the Criminal Code or should we leave it up to the provincial jurisdictions?
Mr. Korpan: I will address the reason that peace bonds are substituted more often for this type of offence than for criminal offences generally. I do not know whether, if you consider the charges laid for things like domestic assault, threatening in a domestic context, or any of those other ongoing offences against the person, you would see a disproportionate use of peace bonds for stalking. Peace bonds are not used for drinking and driving cases because there is no logical reason for it. There is no rational connection between a peace bond and an offence such as drinking and driving or a drug offence.
I question the statistic that says that, for all charges laid, only 5 per cent are substituted with peace bonds, yet for stalking or harassment it is much greater. That is because of the nature of the offence and because another rational solution exists in the Criminal Code for solving the problems that flow from those types of offences. Perhaps undue alarm is caused by referencing those statistics.
Senator Nolin: I will continue by reading the fourth conclusion:
The great majority of accused are released prior to trial; many of them have previous criminal records and a significant number have records of breaches of court orders, and are reported to have been violent with their partners in the past.
Mr. Korpan: I am not in a position to challenge their statistics.However, I can tell you that as a defence counsel, if someone comes to my office or, more likely, calls from cells who is charged with harassment and who has previously assaulted a woman or has a criminal record, I will tell that person that we have an uphill battle when it comes to bail. I know the Crown will not do me any favours. They will want, as a minimum, a predisposition report, and even if the Crown does not want it, the judge will ask for it as a matter of course. I have an uphill battle getting that person out. I am surprised by those statistics.
I take issue with the suggestion that a previous criminal record does not routinely put the person at greater jeopardy for imprisonment or more harsh sanctions than an offence of the first instance would.
Mr. Neville: It is difficult on short notice to respond to this study. If I read it correctly, it looks like it was authored in 1996. I presume the work was done based on statistics gathered in 1994 and 1995, depending on what month in 1993 the section came in. There may be a sampling problem here to a certain extent.
However, as I skim through this, I see that on page 39 the author seems to itemize the series of factors that led to charges not proceeding to the fullest extent. They are the following: the stated desire of the victim on whether or not to proceed; the strength of the evidence, particularly where the victim is not likely to be an effective or willing witness; heavy Crown case loads and the accompanying pressure to avoid taking cases to trial where other outcomes are available, especially if they are acceptable to the victim; the likelihood that findings of guilt will result in probation rather than incarceration, except in very serious cases, or where the accused has an extensive record; the likely benefit to the accused of having the proceedings extend in time; and defence counsel in accordance with the above factors. Those are not very surprising factors. Those same factors come to play on virtually all criminal charges, short of the most grievous ones, such as homicide. We see cases disposed of other than by full trial for those types of reasons all the time. If those are the factors that would apply here, they are not unique.
That is fairly typical of all criminal prosecutions. You will note that in most instances, the willingness of the complainant, described here as victim, to accede to that outcome appears to be a common denominator in many of those factors. If we want to get behind that and state the reasons that made the victim accede -- pressure, threat or whatever -- we can go on forever. But for the most part, those seem to be alternative dispositions in which the complainant, or victim, has a significant say or input. It is not pure expediency, and that is not remarkable.
That is particularly true where, as in the stalking situation, by definition there is no longer an ongoing relationship. It would be a rare instance where there has been reconciliation and a restoration of the relationship. In many of those instances, I would venture the tentative opinion that the complainant is satisfied because there are in place a range of remedies, including matrimonial resolution and the like. I do not find that particularly surprising, with great respect.
Senator Oliver: I was going to ask if the witnesses have read the report of the Department of Justice that analyzes section 264, but that question has already been asked. The record will show that the answer is no, neither of them has read it.
Before I make my comments, I should like to say that I am very pleased that both of you took time from a busy practice to prepare a brief, come here, submit it and answer questions. Your effort has added to the debate around this bill, which I considered to be important.
I am not a criminal lawyer. I am a civil lawyer and have been practising for 35 years. I practised criminal law exclusively for the first three years of my practice, and also taught law courses for 14 years. I do civil cases, so I am not going to debate criminal law with you, even though I am tempted to.
My first point is that the system has failed the victims of stalking and criminal harassment. If you had read the report, you would know that the introduction indicates that data on the outcome of cases supports the view that most people interviewed believe that the justice system is not at present delivering the strong message that was intended with the introduction of section 264, which was that harassment is a serious offence that will not be tolerated.
You began your submission by saying that the criminal law should not be used as a tool for social change. I am here today not as a lawyer but as a lawmaker. One bill recently introduced into Parliament deals with something called "victims' rights." It will deal with the possible use of victims' "impact statements." Here we have a matter of public policy. Let us do more to protect the victims. Let them have a chance to have their statements given before sentencing. That is one direction that Criminal law is moving. It is not just designed to put people in jail.
Second, when I heard your presentation, it was clear that your perception is that there is in fact no problem here to be remedied. Indeed, to use your language, the sentencing proposed in the bill before us is too severe for the "perceived problem." Your use of the word "perceived" indicates that in your mind there is no problem and that we are wasting a lot of time here because there is no problem to be rectified or cured. That was a disappointment. If you had had a chance to read the Department of Justice's assessment of what the problem was, with the interpretation and application of section 264, your conclusions might have been different.
In many ways you both presented a very brilliant defence of the status quo. In other words, you say, let us leave the statute the way it is.It is too early to make any change. However, that ignores the inherent problem that does exist. It is almost an ivory tower approach, in that it does not realizes what is happening on the ground.
It is more than simply a domestic problem with a husband and wife fighting, separating, or something like that. The Department of Justice report points out its surprise at finding that most of the indications of stalking or sexual harassment were not between a husband and wife who were estranged. Contrary to what both of you have said -- that this is basically about a husband and wife who broke up and one is angry at the other and they just want to have a confrontation that can be resolved through mediation -- that is not what the facts will show. Indeed, I think of your presentation as a syllogism. If the major premise of your syllogism was based on certain known facts, and the known facts came from the Department of Justice, but you had no knowledge of it, then the basic premise is wrong and, therefore, the conclusion of the syllogism is wrong as well.
I had hoped that you could have addressed this for us today, and I would ask that you comment on this now: Assuming, for the moment, that there is a problem with respect to the enforcement of the stalking provisions of the Criminal Code, is there anything positive you can recommend to help overcome the problems of victims who are constantly haunted and followed by people who may one day kill them or cause them grievous physical harm? Do you have anything positive to suggest to strengthen the bill in order to give more protection to the victims?
Mr. Neville: It seems to me, senator that it appears to be a law enforcement issue. In other words, the legislation is there. Perhaps I can come somewhat to my own defence. Parliament made this a criminal offence. That speaks for itself. It has been a crime since August of 1993. Parliament through the democratic process has addressed this social behaviour and made it criminal conduct.
We are talking about whether at the enforcement stage, which is a provincial rather than a federal issue, it is being enforced in the manner that was intended by putting it into the Criminal Code in the first place. With great respect, I do not see how this committee could solve that problem.
I would be quite happy to attempt to read this report in its detail and return, if there is any point. But I do not know what accuracy in terms of the conclusions we are to draw. Page 26 contains a chart that purports to show, if I understand it correctly, the relationship between the complainant and the accused. A number of categories are listed.
Their sample is only 599 instances, which does not seem very high for a sample from coast to coast. If I read it correctly, about 57 per cent of those occurrences are between partners, either former or current; 4.7 per cent are between friends; 20.7 per cent are between acquaintances, whatever that may mean; and 11.7 per cent are between strangers. That is what the chart says to me. I may be misreading the chart or taking it out of context, but it says here that 70 occurrences out of 599 involved pure strangers, meaning 11.78 per cent.
If you look at the first five categories, current partner, former partner, friend, co-worker and acquaintance, you have a direct connection between offender and victim in about 85 per cent of the occurrences. There appears to be, by the consultants' own analysis, a direct personal connection between offender and victim in the range of 85 per cent.
I would rebut your criticism, if I may, although we have not had a chance to read the report. Stalking is not all partner-based, and I did not suggest that it was. I included as a significant component the employment situation, although they say here that it is only 2.78 per cent or 3 per cent. Nevertheless, it appears that in 85 per cent of the occurrences there is a personal relationship of some kind between perpetrator and offender.
To a large extent, that is why the disposition rate by way of alternative dispositions -- peace bonds and the like -- is as high as it is. There is a personal component. If the factors the authors have identified leading to the non-proceeding decision by the Crown are the ones I read from another page, it appears it me that for the most part an alternative disposition involves the input of the victim by way of concurrence.
When the domestic relationship is ongoing, there is a legitimate concern. I have concerns myself when I am defending an accused and the accuser backs off. Is there a degree of blackmail, to use a generic term, of economic pressure or something?
In a stalking situation, normally the reconciliation component will not be there. No one wants to be together, or at least one person does not, so you do not have those dynamics. There is no abuse or failure to implement the legislation if the victim, by the standards that we have read here, has a say, especially where, if I read the percentages correctly, in some 85 per cent of cases there is a personal connection.
It may be that the victim, through alternative measures that gives them the protection they want or through balancing off their attitude, realizes that the full penalty of criminal remedies is excessive. They may come to note that it will cause more harm to that person, for example, loss of work. An alternative disposition that does not result in criminal conviction is acceptable where the other safeguards are in place. I suspect that that is what is happening.
I am concerned about the value of a study authored on statistics gathered within two years of the legislation. By statistical analysis, there is a high personal component in these prosecutions, as one would expect. The stranger component is very how, just under 12 per cent. The figure for "public" was 0.7 per cent; for "other," 1.8 per cent; and for "relative," 1 per cent. According to this chart, then, 85 per cent are in a situation where there was a degree of relationship, be it intimate, employment, friends, or whatever acquaintance means.
Because there is such a highly personalized aspect to the prosecution, given what we are told, I suspect that the prosecutors are taking into account the wishes of the victim. If that is so, it is appropriate. If there are other motivations, such as pure expediency or overloaded caseload, that would be wrong. It is a question of devoting the resources. That is why I encourage the committee to hear from the law enforcement arm, the attorneys general. I suspect that they would tell you, perhaps it is self-interest, that they do not minimize this.
Senator Oliver: You made that point before. I would respond by saying that this bill before you was not picked out of the sky. It was done after consultation with Crown prosecutors, criminal lawyers that I spoke with from across Canada and through the offices of attorneys general, such as the attorney general of British Columbia who hopes to appear before this committee and speak in support of the bill. Indeed, people who are professionals and work in departments of justice across Canada have done some of drafting of the bill. They have in fact been consulted. I wanted to put that on the record.
Mr. Neville: I understand that from your observations to the committee on the first day. Those who are in a position to prosecute, in my experience as a defence lawyer, see vigorous law enforcement and maximized jail as the typical solution.
I do not share that philosophy. It is not accurate, nor is it effective, but you will find that philosophy there. I am not surprised that prosecutors will tell you that we need more prosecutions and more jail. That is the headspace from which they come. I do not. I do not share that philosophy at all. I think, with great respect, that it is out of step with the amendments to Part XXIII of the Criminal Code, the sentencing amendments and decisions of the Supreme Court. It is not, at the moment, where we appear to want to go. It is a retrograde step. Moreover, given the high personal component in these cases, an indictable penalty of 10 years versus five, or a summary penalty 18 months versus six, is not going to make a difference, frankly.
I would seriously urge the committee to reject an approach and/or an amendment that would introduce minimum penalties. I have explained procedurally and from a sentencing analysis standpoint the danger that that can cause, and the restriction it would place on courts to deal with it constructively. Perhaps the simple message is that when you hear from all the attorneys general, remind them that it is serious. I would be surprised if they told you that they did not realize or did not think it was.
Mr. Korpan: I echo everything my learned friend has said and I will not repeat that. The discourse of the day has been, in large part, focused on different things that could be done through the crown prosecutor's office.
I empathize with the consideration of needing to do something for the victims in these cases who are being stalked by a crazed madman. Having had the benefit of reading some of the transcripts of the previous hearings, it sounds almost like a case of a witness or victim getting lost in the shuffle; a witness who does not understand the process and who does not know what exactly the criminal law specifically can do for them. You hear concerns being elicited by victims and witnesses generally for all types of criminal offences. What is the next step after this? What are the different things that can happen? What happens when I show up for court? He is in court today. Is this a first appearance or trial? Will I be on the stand? Those concerns that a victim has apply ten-fold to a situation where the danger is ongoing and that crazed madman is still out there.
We have victim services in the Saskatchewan Department of Justice. I suppose it is an initiative of the provincial government. I am not sure of the extent to which it exists in other provinces. A victim's advocate is assigned to the complainant, especially in these types of cases, and that person takes the mystery out of the process. However, victim advocates have limited time and resources. They cannot give the person a tour of the courtroom or take the person to court and show them what it looks like, so they can watch another trial and see what is involved in getting on the stand. They cannot take the time to apply to have the victims testify behind a screen so that they do not need to confront the accused face to face. The victim advocates will often stand beside the person in the courtroom just to give support and take some of the intimidation out of the process.
All those things are tough to argue with from a defence perspective. You can cross-examine a witness but certainly no defence counsel would ever be seen, I would hope, or wish to take part in the intimidation of a witness that is already being intimidated by the crazed madman who is stalking her.
All of those things that are happening in Saskatchewan would be ideally suited to quelling some of these concerns. Perhaps there needs to be some discussion among the provinces as to what makes for a good victim services program. The need for a victim services program in these types of cases must be highlighted. That might go a long way towards quelling some of the concerns and lead to the successful prosecution of cases where the person backs out because they are scared, and the matter does not go ahead for that reason.
I will not suggest that that is a valid reason why a charge should not go ahead. In other contexts it perhaps should not go ahead because the problem can be solved in other ways. However, if the person is not following through because she is frightened, there is a way of addressing that other than changing the criminal law.
Senator Oliver: That is very helpful.
Senator Bryden: I would just like to do two things. One, I should like to give the opportunity to the witnesses, since they have not had an opportunity to see this document, to provide us with any written information or response that they are not able to do adequately today. The committee would be very pleased to receive that.
You spent a great deal of time preparing and being with us. I do not think we should impose any sort of obligation. If you wish to make such a response, I am sure the committee would be pleased to receive it.
In addition to that, I also had not seen the document until now because I missed a few hearings. It is interesting to observe, and it may be on the record already, that the document is a document provided to the Department of Justice by two consulting firms; Alderson-Gill & Associates Consulting Inc., and Datalex Socio-legal Research and Consulting Ltd. On the bottom of the inside cover page it says:
The present study was funded by the Research and Statistics Section, Department of Justice Canada. The views expressed herein are solely those of the authors and do not necessarily represent the views of the Department of Justice Canada.
I do not know whether that was on the record.
Senator Nolin: I mentioned that.
Senator Bryden: The other point I should like to make is that I had an opportunity to take a quick look at the executive summary. Therein, it says:
The report recommends that the following measures be taken in response to the findings of this initial review of the implementation of section 264:
It then goes on to list nine recommendations. Nowhere in those recommendations do they recommend increasing the penalties. If we are using this document to justify increasing penalties in this bill, certainly that is not one of the recommendations that comes out of this document. That is not to say that there may be other very valid reasons.
I include in that increasing the penalty to the point where you could make someone a dangerous or a continual offender.
I just wished to make that point.
The Chairman: Thank you, senator. I wish to thank our two witnesses. You stood up to a great amount of grilling today and you have made a very reasoned presentation to us.
The committee adjourned.