Proceedings of the Standing Senate Committee on Legal and
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
The Acting Deputy Chairman: Are you suggesting that we should get rid of the
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
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
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
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
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
Senator Andreychuk: You want to take that risk now and see whether the system
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
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
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.