Proceedings of the Standing Senate Committee on
Legal and Constitutional Affairs

Issue 67 - Evidence

OTTAWA, Wednesday, April 28, 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 3:42 p.m. to give consideration to the bill.

Senator Pierre Claude Nolin (Acting Deputy Chairman) in the Chair.


The Acting Deputy Chairman: Honourable senators, this afternoon we are continuing our study of Bill S-17. We have as witnesses representatives of the Metro Action Committee on Public Violence against Women and Children, or METRAC.

Please proceed.

Ms Marilou McPhedran, President, METRAC: I have met many of you previously in dealing with issues of justice, particularly as they affect women and children who are victims of violence, but not exclusively on that. However, that is the issue that brings us before you today. We want to remind you, with some considerable pride, of the contributions made by METRAC to the process of amending and improving the Criminal Code, which since 1993 has begun to address the issue of stalking, or, as it is known technically in the code, criminal harassment. Senator Oliver's bill is a wonderful opportunity for us to revisit the issue of criminal harassment, as well as to address the broader societal context within which it was brought to the legislative process that resulted in the 1993 amendments, and to the amendments proposed now.

We wish to thank Senator Oliver for his initiative, and Ms Dawn Black, who introduced the private member's bill. That bill moved very quickly through the legislative process. Many of the recommendations that METRAC and other organizations made during the 1993 process were ignored. Perhaps that is one of the reasons we are here again today. The legislation and the amendments dealing with stalking were deficient from the beginning, perhaps due to an agenda focused more on timing than on effective content.

Today, in this second review process, we have the opportunity to answer the question Senator Oliver posed to you previously. On that occasion, he asked if it would be good public policy to tighten up the punishment sections of the law so that Crown attorneys, judges, police, and perpetrators know we mean business.

METRAC would answer "yes." The points we will make reinforce some of the concerns raised by Senator Beaudoin. In previous discussions, some senators were concerned about the limited focus on punishment. METRAC questions the logic behind the belief that by making sentences more severe, we will pay more attention to this crime and establish better protection and remedies for its victims. We are not convinced of that at all. We think there are serious gaps in that logic. We want to suggest the use of Bill S-17 as the foundation for the proposal of significant additions needed to create more effective legislation. We will address the broader, systemic context of violence in our society, particularly violence against women, since the vast majority of the victims of this type of crime are female. We will also ask you to examine with us a definition of stalking as a preamble to this bill, with an emphasis on prevention, as well as to assess the need for effective monitoring and follow-through.I do not believe this has been addressed yet. In addition, we will ask you to pay attention to the invaluable role of grassroots organizations in our country. Those organizations serve on the front lines, addressing fears, and recognizing the risk and deprivation faced by the victims of this crime. Those organizations are in the non-profit sector, and are disadvantaged when it comes to resources. We suggest that taking a more thorough approach is the best way of ensuring that we actually reduce the incidence of this crime and the damage it causes.

We are proposing a definition of stalking as a pattern of conduct directed at a specific person or persons, causing them to be frightened or seriously concerned for their safety or the safety of anyone known to them. Furthermore, we need a preamble, which should make it clear how this is addressing the larger, systemic issues of violence in our society. In addition, we need to address concerns that legal activities, such as picketing by unions, not be encompassed within the intention or the effect of this proposed legislation. That is a possible misinterpretation we wish to avoid. We also need the Crown to follow through. Moreover, we want to address inadequate Crown preparation, such as the fact that the victims, the majority of whom are women, are not consulted at all, or only minimally, and often so late in the process that there can be no real impact.

Stalking, or criminal harassment, charges are followed in our system by extensive delays, plea bargains, and often no accountability on the part of the perpetrator.

I invite to you look at section 264 of the Criminal Code and to highlight the terms "recklessly" and "reasonably." We questioned in 1993, and we question again today in 1999, the use of the term "recklessly." It does not capture what is often happening. We made the same mistake in this country once before when we dealt with the "drunken honest belief" issue around sexual assault and we had to go back and change our laws to respond to that. Let us not make that mistake again here.

"Recklessly" is not really the issue here. The issue is the doing. What is the actus reus? What is the act that needs to be addressed in the criminal harassment section? The terrorizing is the doing in this. We need to measure the offence by looking at the impact on the victim, and we also need to minimize discretion here. This point has come up before you many times. We have looked at, for example, the discussion around the mandatory minimum sentencing.

METRAC concurs with the proposals that have been brought to you by both CAVEAT and Victims for Justice for dealing with the mandatory minimum of four months where there is a breach of any kind of no contact order, whether it is bail or probation. We concur with the proposal that came out of the discussion -- I think made by Senator Moore -- that there should be a mandatory minimum sentence of 12 months in relation to section 264 of the Criminal Code.

If we are to take the approach of focusing on protection of victims and analyzing the impact on them, then we need to look at how to treat this as a serious crime. This is one of the primary motivations articulated to you by Senator Oliver. We would pick up on that and say to you, let us put some content behind that goal, behind that desire. I think it is a widely shared goal.

If we are going to seriously address protection of victims, then we need to add to the monitoring where there is a three- to five-year restraining order on perpetrators of stalking. There needs to be, in addition to the order, in addition to the piece of paper, more attention paid to the resources for the follow-through, the monitoring. It means we must insist on vigilant prosecution of breaches of restraining orders. We must treat them for what they are, contempt of court. That is why the CAVEAT and the Victims of Justice proposed the mandatory four months for any breach of any no contact order. A breach must be treated swiftly and very effectively.

Where there is a violation of an order, whether it is civil or criminal in source, it should trigger a charge. The violation of the order should trigger a charge by police and a prosecution. The Crown has to look, once again, at the contempt for the system that is evident where there is such a breach.

The Manitoba Attorney General said, after one particularly appalling case there, that restraining orders do not restrain bullets. That may be true. But breached restraining orders are an even greater risk and greater problem for us to address.

We want to ask you today to work towards producing, from Bill S-17, legislation that focuses on the safety of victims, on preventive measures to bring about greater safety. Let us look at mechanisms to act quickly on victims' information and to secure the situation to the greatest possible degree of safety throughout the investigation -- from the point of the information, charging, and throughout the entire system. It requires checking and reassessing at several points throughout the process.

As we overhaul this piece of proposed legislation, let us create a preamble that articulates that criminal harassment, or stalking, is simply one point along a continuum of violence that we as a society, as a democracy, are dedicated to eradicating.

My colleague, Susan Vander Voet, will make some additional points.

Ms Susan McCrae Vander Voet, Project Director, METRAC Stalking Action Guide: As Ms McPhedran pointed out, despite the law enacted in 1993, many of the issues related to stalking have not been dealt with adequately, or are not being dealt with very well. In part, that is due to the way the law is constructed. In even larger measure, perhaps, criminal harassment has not been controlled due to failures in the legal system. I will mention some of those specifically.

The failures are related to a non-understanding of the patterns of this crime and its gender-based nature. There has been a failure to see these crimes as violence against women in that continuum that was mentioned. There has been a failure to acknowledge criminal harassment as a violation of women's constitutional equality and personal security rights.

Some comments have been made already on the amendments to the law. We offer them from the perspective of seeking guarantees for the personal safety of women and those who are dear to them. The current proposals offered by Senator Oliver will undoubtedly make it easier for police, crown attorneys, and judges to act. Unfortunately, that assistance will usually be after the fact -- and often the fact is the woman's death.

We need to understand the proposals as punitive, and we need to take action on prevention as well. Our primary goal is to prevent the deaths of women being stalked. To do this, we must prevent their ongoing harassment at the hands of the men who abuse them. The threat to personal safety posed by stalking behaviour on the part of the abuser is often not considered important.

Out of every 100 criminal harassment charges that are laid by the police, only about 42 actually end up in court. And from those 42, an even smaller number are found guilty. We do not even actually know what percentage are found guilty. However, we are estimating it is around 65 to 70 per cent, which is similar to the charges of wife assault. Of those found guilty, one-quarter or less go to jail. A jail term is the only effective protection the criminal system has to offer. In other words, out of every 100 cases where charges are laid, only about seven abusers end up in jail.

Most experienced people agree that the greatest problem in protecting women from criminal harassment is that those in a position to act and prevent further harm underrate the threat and do not take the crime seriously. This has a dampening effect on women, who often feel re-victimized by not having their concerns treated seriously. There are two major effects of this attitude. The first is to decrease the number of criminal harassment crimes reported and prosecuted. The second is to place women in greater danger if it is believed that police or Crown attorneys will treat the behaviour as not serious and not posing a threat to the victim.

There is an additional, third affect, this time on the stalker, when his threatening behaviour is not taken seriously. He comes to believe that he can continue to act with impunity because no one will stop him.

These effects cannot be fixed merely by adjusting the law. Those adjustments must be accompanied by other measures. Education and training for police, Crown attorneys, and judges are critical to any success in addressing criminal harassment effectively and reducing the threat to safety and wellbeing. You have heard from CAVEAT and the reports of the round table seminar that they held in June, 1998. We participated in that session. They have proposed the content and scope of training, which we heartily support.

I will add that METRAC is one of the grass roots, community-based organizations that is in a position to provide training to any group on this subject.

The May-Iles inquest report from the Ontario coroner's office highlighted the need for law enforcement systems to understand and act on the real and potential risk to women from stalking. For those who may not be familiar with the circumstances of this case, very briefly they are as follows.

Arlene May and Randy Iles had an intimate relationship for a number of years but did not live together. During 1995 and 1996, he assaulted, stalked, and threatened to kill her on a number of occasions. He was charged with multiple charges several times, in different police and court jurisdictions. They lived in a rural area, which was the reason for the crossover in jurisdictions. Each time he appeared in court, he was released on nominal bail on his own recognizance. He was in possession of a firearms acquisition certificate. On the day before he killed Arlene May and then himself, he used that certificate to purchase the gun that he used to kill them both after taking her hostage in her own home.

Ms McPhedran will speak to some of the recommendations and categories of recommendations that came out of the inquest that we feel are very important. They were too numerous to list in our presentation. I brought a hand-annotated copy, which I gave to the clerk and which may be of use to you. I have noted which of the recommendations relate specifically to stalking and criminal harassment.

Ms McPhedran: I want to address a few points on the lessons that I think we can learn, and ones which I hope we do not have to relearn, as a result of the May-Iles inquest. First, I need to make the point that that inquest in Ontario was, very sadly, not the first major inquest into cases of stalking and murder in domestic situations. In the year prior to this, we had a thorough examination in Manitoba. There has also been a thorough examination in British Columbia. I know that Senator Oliver has put quite a bit of the British Columbia material before you and we will not repeat that. At the beginning of the Canadian summer, which is the very first week in July, we were treated to national headlines in this country that concluded, as a result of the inquest and the jury's recommendations and conclusions, that Canada was in the midst of an "epidemic" of domestic violence. That was a significant shift from much of the commentary. In July of last year, what is described as our third national newspaper was not on the newsstands. Perhaps they would have taken a somewhat different point of view on this issue of violence against women. Certainly, The Globe and Mail, The Toronto Star, and the network of Sun newspapers across the country, definitely saw the May-Iles case as a demonstration of a serious and pervasive societal problem that was not being adequately addressed by any of the aspects of our legal or social services systems.

I was called as an expert witness to the May-Iles inquest and I will summarize a very small number of the recommendations that were made. When we talk about "victims of violence," we are talking about women as the objects of the stalking and men as the perpetrators. Let us bear in mind that in the majority of these cases, there are also victims who are children. They are not necessarily being stalked directly. They are not necessarily the subjects of the stalking, but let me assure you that they are victims.

In the case of May-Iles, there were more than nine small children whose lives were irrevocably damaged by this crime. They lived in terror prior to the murder of Arlene May, herself a mother of four children. They continue to be severely damaged and a very serious concern for our community at large. They will probably be so for many years to come.

Because we have worked on issues together in the past, I know that many of you are well-versed in the impact of violence on children and families. Thus, I will not belabour that point. However, I ask you to bear it in mind as you continue to examine Bill S-17 and the definition of victims.

The Ontario coroner's jury offered many recommendations, such as safety for victims of violence. They treated that as the first and major consideration in any action taken by the police, the courts, or officers of the court, including Crown attorneys. They also adopted very clearly in the introduction to their recommendations, a zero tolerance policy for domestic violence, which they said informed all of the recommendations that they made.

They recommended that criminal harassment behaviour be treated with much greater seriousness. They pointed out that the added threat to women that it signals must result in mandatory laying of criminal harassment charges.

They placed a significant emphasis on the training of police and other officers of the legal system in the use of threat and lethality risk assessments, which are available and have been developed in a number of jurisdictions, both American and Canadian. They made it clear that lethality assessment skills need to be taught to police officers, Crown attorneys, justices of the peace, judges in family and criminal courts, parole officers, probation officers, and victims' services personnel.

They recommended an extensive overhaul of bail procedures. I will make a very specific recommendation that will not necessarily be found in Bill S-17. As the work of your committee evolves, please bear it in mind. Crown prosecutors in this country rely heavily on policy and procedure manuals. They use those based on the Criminal Code. However, they are in fact directives and guidelines that are interpretations of the Criminal Code. They are directions that come from the attorneys general in the various provinces. It is important that these directions and guidelines in the manuals for Crown attorneys address the issue of criminal harassment and the need for lethality assessment and the laying of charges.

The jury went on to say that there needs to be an extensive overhaul of the procedures involving firearms and firearms acquisition certificates. They were mindful of the recent amendments that are taking place in this country, yet they still made this recommendation. We need to include searches for firearms as part of the investigation. We need an automatic suspension of firearms certificates and confiscation of firearms upon the laying of charges in cases of domestic violence or stalking, as well as a ban on firearms or lethal weapons where possession is a condition of any bail that is offered.

They also recommended more complete communication with, and support of, the victim and the victim's family by all parties in the legal process regarding any matter whatsoever that could affect their personal safety. They also emphasized that it is crucial for the victim and her family to receive legal aid assistance during the criminal or family court proceedings on issues of disclosure of their private records, their Charter rights, or their privacy rights. This is absent in virtually every jurisdiction in every case of stalking in this country. This lack of representation for the victim and the family during the process results in further victimisation.

In closing, let me just reinforce the points that we made here today about the need for a preamble to Bill S-17 and the need to look at the definition of stalking. The emphasis should be placed on prevention and monitoring and the resources that must flow to the non-profit sector in this country, which bears the brunt of helping victims of stalking and others along the continuum of violence.

Senator Beaudoin: I have two questions, first, on the preamble. I am told it is at third reading that we may add the preamble, not at this stage. I am much more interested in the content of your preamble. Have you provided a document on this?

The Acting Deputy Chairman: We have a short one.

Senator Beaudoin: The BNA Act is a few lines. Some statutes have a preamble of two or three pages. Do you have the actual wording?

Ms McPhedran: We would be delighted to make a proposal to you, if you are open to that.

Senator Beaudoin: You will submit one. I remember a previous committee where we discussed a preamble and I received, I do not know how many.

My second question is on the issue of a minimal sentence. We discussed that the other day. I raised the problem. You said that you will say a few words on this; is that correct?

Ms McPhedran: Are you referring to the subject of mandatory minimum sentences?

Senator Beaudoin: Yes.

Ms McPhedran: We concurred with Senator Moore's proposals to this committee that there needs to be a mandatory minimum sentence of 12 months on summary conviction under section 264.

We also proposed, and agree with the previous proposal you received, that there needs to be a mandatory minimum sentence where there has been a breach of any no contact order.

This kind of breach is such a powerful and demonstrated lethality indicator, it is imperative that our legal system act immediately and effectively. It must be treated as contempt of court and punished with a mandatory minimum sentence.

Senator Beaudoin: What about the maximum sentence?

Ms McPhedran: We have not really addressed that. What are your thoughts on that?

Senator Beaudoin: Well, I would like to give a certain degree of discretion to a judge. I agree with you that a minimum sentence in some cases is certainly a good thing because the Criminal Code must be taken seriously and some particular crimes like the one that we have here must be considered as serious.

We have many cases where we have minimum and maximum sentences. Therefore, it is probably a question of policy.

We heard from some other witnesses the other day. I particularly remember the testimony of one person who said that so far, the courts have not taken that kind of crime very seriously. Therefore, we must do something.

I agree with Senator Oliver and you that probably a minimum sentence is certainly one possible remedy.

In regard to the second question, setting a maximum sentence, since it is usual in criminal law, except where we have the death penalty -- it cannot be more than that -- I am quite open to this. If you wish to change anything on this, I would certainly agree. It is a question of comparing this crime with some other crime.

Ms McPhedran: Let me explain a little more fully why we place the focus on the mandatory minimum, rather than getting into the discussion around the maximum.

The truth about how our system operates is that early release is more the norm than anything else, if indeed there is any holding of the person at all.

The damage that is being done, the deaths that are resulting, the terror that is being perpetrated by stalkers who turn into murderers in this country, is happening at the point of the process where they are released. Stalkers are not held. Bail conditions are not sufficiently addressing the reality of the risk of the situation. They do not have parole or restraining order conditions. Those no contact orders are not sufficiently addressing the risk of lethality in the situation. These orders are not being enforced at that point. That is why we have been focusing on detention, holding and enforcing, as opposed to length of holding, although that is also very relevant. However, because we are seeing so much go wrong so early in the process and so few convictions that result in the perpetrator being held, the safety of the victim and the victim's family is not addressed. That is also one of the main reasons why we have said that the preamble and any amendments that come out of this need to be based on consideration of the safety needs of the victim and the victim's family.

Senator Beaudoin: Yes.

Ms Vander Voet: I am glad Ms McPhedran emphasized the risk. The reason for holding someone when they refuse to obey a court order saying they must stay away is precisely to protect the victim.

It also is an indication of the seriousness with which the crime is regarded. However, our primary purpose in proposing that is to protect the victim and her family.

Senator Beaudoin: You have convinced me.

Senator Grafstein: I wish to talk about this issue generally and then deal with the specifics in the bill.

I agree with your analysis that it is a very serious problem. I am not sure if it is epidemic -- it is certainly serious -- because we have not measured it before. It has always been there, but we have never measured it. Let us lay that aside.

I agree with the assumption that there is a very serious problem with respect to public order, fairness, and individual security. In your attempt to solve the problem, I do not see on your list any advice or assistance to the person with respect to counselling.

It strikes me that in addition to the criminal aspect of this, a large measure of these incidents, either convicted or unconvicted, relate to a person who is obviously not mentally balanced. Yet, you list police officers, the Crown, justices, parole officers, probation officers, and victim personnel.

Is not the heart of the problem dealing first with the instability of the person who does these things? I raise that in this context, that Canada has a factual reputation for incarcerating more people per capita than perhaps anywhere in the world. We have a very high incarceration rate. Here is another suggestion of an epidemic and we will incarcerate people. Now, I do not quarrel with your intent, but if we incarcerate a whole other group, the system is overloaded.

Is there not at least a partial alternative here to deal with the root problem, which is the emotional instability of the individual? Have you given any thought to that?

Ms McPhedran: I believe we both have commentary to make on this. I will start with a bit of a meta-level response, which is to address the issue of overload. When we try to answer that part of the question, I ask that we bear in mind that not only is our legal detention system overloaded, but our social services system is, I would argue, equally or more overloaded in providing front-line service to both victims and perpetrators of violence. I need to make the point clearly here that that is not what METRAC does. METRAC is a catalyst for systemic change. We do not do individual casework unless it is a systemic change test case.

I am not speaking here as a front-line service provider. However, on the question of how do we rehabilitate the perpetrator, I would disagree with a proposal -- which may or may not have been what you intended -- that resources should flow into the treatment of perpetrators without charging, without holding, without detention. I say no, METRAC would not agree to that.

If we are looking at a range of resources in which we place the overriding priority on the safety of victims and their families, and can also mobilize resources to rehabilitate offenders, then yes, of course, that is an accepted principle of our justice system.

However, the current reality we are struggling with is the huge lack of resources in both of those systems. We are not demonstrating our capacity, if we have it at all, to prevent and/or rehabilitate offenders, and we are therefore leaving the victims at risk. That is the completely, fundamentally unacceptable quid pro quo. It is a deathly quid pro quo.

Senator Grafstein: You dealt with the issue of privacy in your brief. I agree that all of a sudden, a victim is victimized over and over again because her name and her family's name are in the public process. The bill does not deal with that. Can you propose an amendment to this bill that would deal with that matter? I have no problem with information about the criminal being made public, but I do have a problem with information about the victim being publicized. It is a question of privacy.

It has happened in instances that I have observed in the courts, where the victim and family play this over and over again as they go through the various stages of the proceedings. It is an endless replay. Privacy would certainly help. At least it curtails the need for them to explain over and over again publicly.

Can you give us some suggestions on that?

I hope that is all right, because it is in their comments on the bill and I accept it as a principle. I would just like to hear a suggestion along those lines.

Ms McPhedran: I certainly think we would see existing provisions in the Criminal Code in relation to sexual assault as a model for addressing the privacy of the victim. We can certainly look to those provisions and see if they are adaptable to and appropriate for situations of criminal harassment. We are also raising additional issues under the title "privacy." We are raising the growing practice of shredding any semblance of privacy where victims are subject to a procedure around stalking and/or sexual assault. The current interpretation being promoted by many of the defence bar is that there must be total, complete, absolute disclosure of every piece of the victim's life. That is being dressed up and touted as necessary for the adequate defence of those accused.

Senator Grafstein: I am aware of the debate. Obviously I do not wish to curtail you; however, I have one other, short question.

Look with me, if you would, at clause 2. As they say, the devil lurks in the detail. We can deal with generalities but we must also get into the detail. Take a look at the proposed amendment 2 on the first page. It states:

Every person who, with intent to alarm or annoy any person, makes any indecent telephone call to that person is guilty of...

Having in mind your recommendation that there should be mandatory penalties to try to stiffen up the law, I do not quarrel with that at this moment.

Ms McPhedran: Strengthen the law.

Senator Grafstein: Strengthen it by increasing the penalties under the law. Let us agree with that. When we do that, we also have a responsibility to ensure that we are, in effect, providing a test that is reasonable. For instance, I am always annoyed when my wife, whom you know very well, phones me in the middle of an important meeting.

Senator Andreychuk: This is going on the record.

Ms McPhedran: In more ways than one.

Senator Grafstein: I am sure she will communicate this to her.

Senator Beaudoin: It is not controversial.

Senator Grafstein: From time to time, other members of my family phone me to alarm me about something that I have failed to do. I say that not only in jest, but because when we are dealing with this matter, it must be, if I can use the word, a "serious" action. To my mind, annoyance on the telephone is not. If it is systematic and repeated, and causes emotional distress to the person, that is a different question. However, to say that someone phones with intent to alarm or annoy, seems to me to be a test that is setting the level too low, if you follow what I mean. It is too minimal a test, at the same time on a serious issue.

Senator Moore: You must read the whole thing.

Senator Grafstein: I start with that.

Ms McPhedran: It is important to read the whole thing. I also think, though, that you have helpfully highlighted one of the key points that we have been trying to make in our earlier criticism of the legislation as far back as 1993. We said then, and we still hold the position, that it is very important to define this offence by focusing on the impact on the victim.

Your partly humorous and partly serious example is a good illustration of our emphasis, which is measuring the impact on you. It is true you may find phone calls from your family alarming or annoying at various times. I would venture to say you do not experience them as threatening. You do not experience fear for your personal safety or the safety of your loved ones.

Senator Grafstein: I agree.

Ms McPhedran: That is one of the areas where we need to strengthen the understanding of the essence of this offence.

Let me take it a bit further. We also question the use of the term "recklessly" in section 264, and also the term "reasonably," in focusing on some kind of measurement of the victim's fear. If we define criminal harassment as an offence where the actus is the terrorizing, is the making of the call, and the impact on the victim forms part of how we define the offence, then we really are placing the appropriate emphasis on the effect of the behaviour.

Your concern was that there are many ways to interpret the words "alarm" and "annoy." What we must capture is where the act is a threat and where it is experienced as a threat.

In addition, it is very important to ask ourselves why there would be this need -- and we think there is no need -- to add the term "recklessly."

I do not think you were here, Senator Grafstein, when I said that this is a chance for us to avoid the mistake that was made around the so-called honest belief or the drunken defence with respect to sexual assault. In that instance, the Criminal Code had to be amended because the argument was being made -- very legitimately under the wording -- that it was possible to have "an honest drunken belief" and then one could commit a sexual assault. Similarly, in this case, it is the wrong approach to develop legislation or amendments to legislation where we place the emphasis on measuring the degree of recklessness. We need to measure the act. An individual decides to pick up the phone and make the call, to stand outside the house, to puncture tires, or to use a dead animal. All of those are acts and decisions, and there is intent. One then measures the impact, and we do not get into this business of adding the word "recklessly." It is a gradation of measurement we do not need in order to address the true crime.

The Acting Deputy Chairman: With respect to the documents you feel you should provide to us, I personally think -- and I think my colleagues will agree -- that you should go through Senator Oliver. He is the sponsor of the bill.

The preamble deals with the intent and the principle of the bill. It was not agreed to by the Senate.

I am not trying to be technical. You should understand that we want that to be corrected, but we want it to be corrected properly. Therefore, please send through Senator Oliver all the documents you think we should read, and we will inform him of that request.

Ms McPhedran: We accept that as a helpful direction.

Senator Grafstein: I do not think it is objectionable for the witnesses to send us copies so we can track the information. I agree that the primary responsibility is on the sponsor of the bill.

The Acting Deputy Chairman: The sponsor will have to introduce any amendments. It is his bill.

The witnesses can provide us with copies, as long as Senator Oliver is properly served with the documents.

Senator Fraser: You have drawn our attention to section 264 of the Criminal Code. It strikes me that the word "recklessly" is not the only problem. You also want subsection (1) stricken. It states:

No person shall, without lawful authority and knowing that another person is harassed or recklessly as to whether the other person is harassed, engage in conduct referred to in subsection (2)...

Senator Pearson: It sounds better in French, Senator Beaudoin.

Senator Fraser: The English version, may I say, is appalling.

Senator Moore: Is there a word missing?

Senator Fraser: We should drop "without lawful authority and knowing that another person is harassed" and just carry on with "engage in the conduct..."

Ms McPhedran: The intent to engage in the conduct is important.

Senator Fraser: Merely removing the word "recklessly" will not solve our problem. Not being a lawyer, I need to check these things.

Ms McPhedran: We see a need to rewrite the section for grammatical reasons and for content.

The Acting Deputy Chairman: Are you suggesting that we should get rid of the intent?

Ms McPhedran: The intent should become the intent to harass -- the action. Mens rea is an essential component of criminal law. We want to define the intent to terrorize.

Senator Fraser: You would say, basically, that "No person shall, without lawful authority, engage in conduct referred to in subsection (2) that causes that other person reasonably, in all the circumstances, to fear for their safety."

Ms McPhedran: Yes.

Senator Fraser: That is clear.

I am also puzzled by the preamble. I await with interest my copy of the letter you will send Senator Oliver, but as I understand this bill, all it does is amend the Criminal Code. The bill itself will vanish.

Ms McPhedran: Right.

Senator Fraser: We will simply have a revised Criminal Code in hand as soon as the consolidated statutes are published. What good will a preamble do? Am I missing something?

Ms McPhedran: It is an amendment or an addition, flowing out of this process, suggesting a preamble in the code.

Senator Fraser: In the whole code?

Ms McPhedran: In relation to these offences on criminal harassment.

Senator Fraser: It would also be incorporated into the code?

Ms McPhedran: It would be an addition.

Senator Fraser: I merely wanted to clarify the fact that your aim is to put the preamble into the Criminal Code, not just into this bill.

Ms McPhedran: We have a further explanation.

Ms Vander Voet: We had a preamble inserted in 1992 in relation to changes in the Criminal Code on sexual assault. That preamble has stood the test of time and has been used by judges as a guideline for interpreting the actual law.

Senator Beaudoin: What section is that?

Ms Vander Voet: The sexual assault section. I do not remember the number. That is the kind of preamble to which we are referring. It gives a context to the law -- why it is important, how it should be interpreted, and in what social context it takes place.

Senator Andreychuk: You indicated that the intent of the act is important, as is the impact on the victim. How do you assess the impact on the victim? I see that as one of the difficulties because every victim reacts differently to different stimuli. We end up with the conundrum we used to have with the mental cruelty sections in the Divorce Act. A minor act by one person has a deep effect on someone, and on the next person it does not. How will we measure the impact on the victim?

Ms McPhedran: 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 victim's experience leads that person to go to the police and seek the help of the justice system, coming up with a measurement of the degree to which they have been impacted is not as relevant as responding to the reality that they have experienced the threat.

Senator Andreychuk: Will it compound the problem for police and the justice system in trying to analyze whether the victim's fear is reasonable, or is an overreaction due to their own makeup or other psychological problems or their involvement with the accused?

Ms McPhedran: That is a skill. A judgment call is required in many situations where people come to the police asking for help. If we have learned anything from the research available to us on stalking, it is that the problem lies in not sufficiently respecting and acknowledging the experience of the victim, and not treating it as a serious situation that must be responded to with effective resources.

Perhaps some day we will be here having a discussion along those lines, but that is not the discussion we need to have today because that is not the current problem.

Senator Andreychuk: You want to take that risk now and see whether the system works.

Ms McPhedran: We need now to address the current problem; that is, the deaths and the damage that are occurring as a result of the crime and victims not being taken seriously.

Ms Vander Voet: I speak on almost a daily basis to women who are being stalked. One of their biggest concerns is that the response they get from the police is not the one they need. It is true that probably no one would see each incident of stalking in isolation -- which may be a phone call, a card, or a bunch of flowers -- as threatening. It is the pattern of behaviour and the repetition of the behaviour that ultimately causes and escalates the fear. When one isolated incident is reported to the police, they do not see it in the context of the pattern of behaviour that has been developing over time and is now causing great fear and consternation.

The police tell me that they do not look at this in a broader context partly because the term "reasonable" is in the law. If the stalker sends flowers 10 times a week, or sends cards three times a day, from the point of view of the police, most of whom are very large and muscular men, those are not threatening acts. However, it is threatening in the context of constant, repeated behaviour directed at controlling and harassing the woman.

Ms McPhedran: I will remind you that we have made reference to the availability of lethality or risk indicators, risk assessment tools. They are not widely known or used. We must place the emphasis on assessing the impact on the victim as opposed to judging the reasonableness of the fear. Currently, when someone comes in and says she is afraid, the police are forced to judge that person's articulation of fear. If they are going to have to make judgment calls, as they do, they should be making them using the tool of the risk assessment lethality indicators that are available. Once they do that, they will be asking those questions and using those tools that will give them the information they need. That will demonstrate what they are dealing with in a criminal harassment situation; the pattern, the range of seemingly innocuous events that are, in fact, when understood in context, extremely threatening and may very well be the indicators of potential death.

Senator Andreychuk: You spoke about the changes necessary to the Criminal Code. Many years ago, we learned that when the attorneys general of the respective provinces directed that charges be laid, that carried more weight than any change in the Criminal Code. Would you advocate something similar here?

Ms McPhedran: Definitely. We made that point earlier. Thank you for reinforcing it. Crown policy and procedures manuals differ by province and are entirely at the discretion of the attorneys general. That is where there must be clearer guidelines and directions in dealing with criminal harassment cases.

Ms Vander Voet: In some provinces, it is the solicitors general who give that kind of directive to the police, and it is absolutely essential that they do so in relation to criminal harassment, because that is the throw-away charge in domestic violence situations. That is the one that gets plea bargained away, or dropped, or is simply not dealt with seriously.

Senator Andreychuk: You spoke about legal aid for the victims. Did you not mean victims' services?

Ms McPhedran: We also meant legal representation.

The Acting Deputy Chairman: Thank you very much for your appearance today at the Standing Senate Committee on Legal and Constitutional Affairs. This has been very helpful. Please send to Senator Oliver all the documents you think we should have, with copies to the clerk. We will ensure that all members receive them.

Ms McPhedran: As one very specific example of needed resources in the non-profit sector, if any of you have an idea on how we might get the funding to publish and distribute copies of this material more widely, we would be delighted to have your help.

The committee adjourned.