Proceedings of the Standing Senate Committee on Legal and
Issue 70 - Evidence
OTTAWA, Wednesday, May 12, 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 4:04 p.m. to give consideration to
Senator Lorna Milne (Chairman) in the chair.
The Chairman: Honourable senators, this meeting of the Legal and Constitutional
Affairs Committee is now in session. We are considering Bill S-17.
We have witnesses from the Canadian Police Association. David Griffin, the
executive officer, is sitting in the middle. From the Calgary Police Service we
have Detective Lynne Cunningham on our left, and from the Peel Regional Police,
we have Detective Eric Harman, family violence coordinator.
Welcome. You may proceed with your presentation.
Detective Eric Harman, Family Violence Coordinator, Peel Regional Police: I
thank the committee for the invitation and opportunity to speak to Bill S-17.
As our laws continue to evolve, reflecting the will of the Canadian people, I
look upon the introduction of criminal harassment legislation in August 1993 as
a significant, evolutionary step. It allows police officers to take a proactive
approach with a perpetrator and enhance the safety of those who constitute our
most vulnerable citizens -- women and children. The monitoring and amending of
that legislation to address concerns that have arisen represents the continuing
evolution of section 264 of the Criminal Code.
The current proposals in Bill S-17 are indeed noteworthy and Senator Oliver and
his flock should be recognized for their leadership and initiative.
Today I will speak about the "must proceed" policy of the Peel
Regional Police Service, police procedures and standards, police training in
Ontario pertaining to criminal harassment, the significance of increased
penalties, and the investigative challenges posed by the current legislation.
I will provide a little bit of background. The Regional Municipality of Peel was
established in 1947 and saw the amalgamation of a number of smaller police
services. Today our 1,200 members patrol the cities of Mississauga and Brampton
as well as the Pearson International Airport. Our population of approximately
900,000 persons is considered to be one of the most culturally diverse in the
As the family violence coordinator, I am responsible for the policies and
procedures of our police service and the consistent response with respect to
family violence situations and victim issues. I am also a lecturer on the major
crime management course on victim issues and victim liaison officer
responsibilities and duties.
From my review of incidents where officers have attended scenes of domestic
violence and/or criminal harassment, I can tell you that it is an issue that
crosses all cultural lines while being one of the most damaging offences to the
family and community.
Police response in Ontario is governed by two policing standards working
together. The first is the police response to wife assault, policing standard
0227, in which the 1979 directive from then Solicitor General, Roy McMurtry, is
reiterated. It states that when an officer attends a domestic violence incident
and finds reasonable grounds to suspect that a criminal offence has taken place,
he or she shall arrest the perpetrator.
The second is the criminal-harassment policing standard that details the steps
to be taken when an officer is investigating a complaint of criminal
harassment. As approximately 75 per cent of criminal harassment cases involve
persons who are, or have been, in a relationship, you can see how the charging
of perpetrators falls out of the "response to wife assault standard."
The so-called "must proceed" is the result of two provincial policies
working together, which are then reflected in the policies and procedures of
individual police services and may be expanded upon.
The first specific training on criminal harassment in Ontario took place in
December 1994 when the Peel Regional Police and the Ontario Police College made
a joint presentation to police, crown attorneys, and probation officers.
Included in the presentation were investigators from the threat management unit
of the Los Angeles Police Department.
In Ontario, all new officers receive 12 weeks of training at the Ontario Police
College in Aylmer. In addition to the training provided by individual police
services, the college curriculum includes criminal harassment training and the
study of criminal offences, as well as the wife assault training portion that
includes practical scenarios where instructors and peers judge the officer
Further, every five years, all uniformed officers receive additional training in
the advanced patrol techniques course, where criminal harassment receives more
emphasis than any other criminal offence. In addition, officers in an
investigative function will receive the general investigations course, which
has a criminal harassment component.
It should also be noted that criminal harassment is one of the threshold
offences for the major case management system being initiated. This is the
investigative system recommended by Mr. Justice Campbell in his inquiry into
the offences committed in Scarborough and St. Catharines by Paul Bernardo. The
Peel Regional Police Service is investigating approximately 215 occurrences of
criminal harassment annually, with an 89 per cent clearance rate. Approximately
62 per cent of the occurrences are cleared by criminal charge.
Increasing penalties is a significant move that would assist in establishing
sentencing guidelines based upon the behaviours exhibited by the perpetrator. I
found no opposition amongst canvassed police officers to increasing penalties.
All of them mentioned the significance of inclusion under the dangerous
offender applications in Section 752.
There is always the possibility of plea-bargain issues, so an increase in
penalties in related offences is required to avoid the possibility of the
accused entering a plea for a lesser offence. As an investigator, I strongly
believe that the link between criminal harassment and the "attempt"
section of the Criminal Code should be established. In one investigation, a
pedophile stalker had altered a vehicle door mechanism so that it could not be
opened from the inside. He stated in a videotaped interview that his intention
was to kidnap, rape and kill his 12-year-old female target. His sentence was 6
months incarceration, two years probation, and entering into a voluntary
sterilization program. The Judge stated that he was only permitted to sentence
him for what he had done, not for what he was about to do. He never followed
through with the chemical sterilization program and was back in the community
in four months. The sentence should reflect the type of offence the accused
intended to commit.
Investigators are concerned about the wording, "to fear for their safety
and the safety of anyone known to them." I will refer to three specific
investigations of which I am aware. The common link between them is that during
the police investigation, three persons, a pedophile, a murder suspect, and an
estranged husband were discovered to have surreptitiously surveyed their
targets. In all cases, photographs had been taken. In the case of the estranged
husband, extensive notes were discovered in his van detailing the targets'
movements. The targets, two women and a 12-year-old girl, had no idea they were
targeted, hence they were not afraid. In the case of the murder suspect, one
target was never identified. If, as a state, we are trying to protect innocent
and vulnerable victims from predators, cannot the state, represented by a third
party, perhaps a police officer, fear for the person? Legal opinions vary as to
whether or not the fear the victims feel after the police tell them they were
stalked can be introduced in court. The thinking is that the stalker did not
cause the fear, the police officer did. For that reason, the issue of fear does
not fit within the wording of the charge.
Other causes of concern have been dealt with by the committee in previous
presentations and each has been given a legal interpretation. The one word that
has not raised an issue is "family." Speaking from a multicultural
urban base, the current concept of family is much different from the one I had
as a child. I suggest the committee examine the word, and either change it or
have legal counsel provide an interpretation.
A repeat offender undergoing risk assessment poses a great risk to the victim.
This would be an individual who has demonstrated that his obsession and desires
are more important than the needs of the victim and that society's sanctions of
his activities have little meaning for him. Any period of incarceration for an
individual like this is treated as a hiatus in the overall stalking. Minimum
sentences should be established for these individuals. Each subsequent offence
would see an increase in minimum penalties, particularly if the same victim
were involved. I encourage the committee to look seriously at the keeping of
Currently, anyone receiving an absolute or conditional discharge has their
record automatically expunged after three years from the date of conviction.
Therefore, there is no record for the police, crown attorneys, or probation
officers to access, should a perpetrator commit a similar offence. The
perpetrator, of course, will not disclose his previous involvement with the
courts. In most cases where he has moved to another policing jurisdiction, he
will be treated as a first-time offender. The common ground indicated by the
most-quoted typologies of stalkers is that individuals involved in a
relationship with the victim are the most dangerous in general terms. Our
community partner, Victim Services of Peel, and our corporate partners, ADT
Alarms, Bell Mobility, and Cantel, support a program where high risk victims
are provided with alarms and cellular phones upon application and approval.
Many victims have stated that this system gives them a feeling of safety they
have not known in years.
Amendments that will allow increased penalties also augment the feeling of
safety in the victims, while assuring them that their complaints have been
taken seriously by the judicial system and Canadian society. This would give
them the dignity and respect they so rightfully deserve. If the committee were
to consider making amendments to the wording of Section 264 of the Criminal
Code, that might increase that feeling of safety while allowing society, through
its police agencies, to deal more effectively with perpetrators without
infringing on the rights of citizens engaged in legitimate activities.
Mr. David Griffin, Executive Officer, Canadian Police Association: We appreciate
the opportunity to appear before the committee this afternoon and we want to
commend Senator Oliver for bringing this bill forward. This is certainly a very
healthy proposal. We would also like to commend the committee for the degree of
interest it has taken in this issue. We have had an opportunity, through the
assistance of the committee staff, to review the transcripts. It is obvious that
the committee has worked hard in looking at this proposal. I am here to extend
our support for Bill S-17, which deals with criminal harassment and stalking.
We support the need to remove fines as a disposition for these types of
offences and to increase the maximum penalties now in place. We also support the
need to include these offences for dangerous offender and long-term offender
applications. These are very important steps in dealing with a very pervasive
crime in our communities.
In addition, we support previous submissions to the committee concerning the
need for minimum sentences. I know the committee has discussed this issue and
that members have questioned various witnesses about it. We believe that when
dealing with repeat offenders -- offenders who have breached release,
probation, restraining and court orders -- it is necessary to have a minimum
sentence in place that will make it clear to those offenders that their
behaviour will not be tolerated.
I am speaking on the principles of the bill. We have invited Detective Lynne
Cunningham to provide the perspective of a front-line investigator who deals
with this type of offence.
Detective Lynne Cunningham, Calgary Police Service: I am in charge of the
domestic conflict unit. There is currently a focus on the number of domestic
complaints the city answers. On average, police officers in Calgary, a city of
approximately 800,000, attend approximately 1,000 domestic complaints per
month. In one year, we had 11 domestic homicides in our city, which was an
eye-opener for our community. Obviously something needed to be done, and in
April 1997, the chief asked two investigators to establish a unit. They were to
go and find out what was needed. One detective went out to the community to
find out how to battle the numbers and what to do about the problem. People
from victim shelters and support agencies throughout the community told him that
they wanted the police to investigate the crimes. They complained that these
types of crimes were not being given their due importance and for that reason,
people were dying. That detective became the supervisor of five investigators.
We were overwhelmed in no time at all.
It is a crime where it is difficult to say no to victims, who for the most part
feel they have to weigh two choices. If the police will protect them, then they
can stay away from that relationship. However, if that protection is not
afforded, many victims will go back into the relationship because, as some have
said to me, "I feel safer with him because I know where he is." It is
a sad statement.
Someone in our unit reads these reports every month and we try to assess the
risk on every one of them. That is difficult to do. It is not impossible, but
each case needs very thorough investigation. The questions that need to be
determined in every domestic call are things like, past psychiatric treatment,
is this person suicidal, and have there been past breaches of court orders.
We have designed a guideline based on the SARA, the spousal assault risk
assessment, which is a 20-question instrument to determine risk devised by two
doctors at Simon Fraser University. We have refined that so that there are
actually nine categories of information that policemen must obtain every time
someone is arrested as a result of domestic violence. That way, when our unit
looks at it, we can come up with a recommendation as to which cases we should
be dealing with. There are few officers and we can only do so much.
We have determined that many moderate-risk cases do become high risk if they are
not managed properly and early intervention is the key. However, it is obvious
that the problem is that the numbers are too high. I can say, though, that our
new budget was approved as of April 26, and there will now be 11 investigators,
one clerk, one forensic psychologist, and one supervisor attached to our unit.
That is how important this issue is. We must stop the murders that are
The present wording of Section 264 is, I believe, fairly non-specific, which is
good because it is workable for the police. It is a crime that is not very
specific. It could involve sending faxes or flowers. It could involve seeing
someone on the corner of a street. That non-specific language allows law
enforcement agencies wide parameters in laying charges. Most criminal harassment
charges are preceded by other court orders in the form of judicial interim
releases, restraining orders, or probation orders. In most cases, those orders
have proven to be ineffective in managing the perpetrator in his pursuit of the
victim. If we could simply rely on a restraining order, there would be no need
for this sort of law. However, in most cases, we are not dealing with people who
have never had exposure to the court system, to the criminal law. Most of these
people have already been subject to other court orders, and it is only because
they have broken those orders over and over again that they end up being
charged with criminal harassment.
Even though the Criminal Code states that a judge or justice will take into
account the existence of aggravating factors, such as other court orders, in
sentencing an accused, I have yet to see any case where an accused has been
sentenced to a term of incarceration for criminal harassment. Allow me to give
you an example.
There was a man in Calgary who beat his common-law wife, and as a result, he was
charged with assault causing bodily harm. He was released on a judicial interim
order that stated he was to have no direct or indirect contact with the victim.
Between September and November 1997, I arrested him seven times for breach of
that order. Finally, on the seventh occasion, I felt I certainly had enough
evidence not only to charge for a breach, but also to charge him with criminal
harassment. As a result of that charge, he was held for a 30-day psychiatric
assessment, at the end of which, the final report from the psychiatrist stated
that this man was "narcissistic." That does not mean a lot to me and
the judge apparently had difficulty with it as well. The two disciplines have
not really worked well together to this point. For this type of crime, we are
learning we need proper information to present to the court so we can get help
for these people.
As it turned out, on December 23, 1997, after the psychiatric assessment, he
went into court, pled guilty, and was given probation for a period of two years
and released on a condition of no contact.
I must tell you that with the degree of investigation that went into that case,
it was getting to the point where I was feeling that he was my project.
However, that is not the intent of our unit and there are so many other victims
Senator Bryden: Can you give me some dates or time frames in relation to this?
When was he charged?
Ms Cunningham: He was charged with the initial offence in July 1997. I became
involved in September 1997.
Senator Bryden: The initial charge in July was what?
Ms Cunningham: Assault causing bodily harm.
Senator Oliver: The seven times that he made contact, was that telephone
contact, physical contact, or what?
Ms Cunningham: It was everything. In one instance, he sent her flowers with a
little love note attached. I was the investigator and she called me immediately
because she was so frightened. I went to the florist and conducted a photo
line-up so that it was not merely the victim saying that this man had breached
an order. It was the florist who said that he was the man who came in and paid
cash for the flowers and had them sent.
He sent a fax to her, and I wish I had a copy of it. It was a photocopy of a
committee hearing in some American state about getting treatment for over-sexed
She had sold her house and moved. She had moved her business into a building
where her office was in the centre and used shared secretaries. He showed up at
the building and waited at her car.
I did not wait until there were three or four breaches before arresting him. I
arrested him every single time because I was new in the unit and I wanted to
make the point that a court order is a court order and I did not feel this man
should be breaching it in light of how fearful she was.
Senator Bryden: I appreciate that, and I did not mean to interrupt, but what I
am trying to do is get the time-frame. The assault causing bodily harm charge
was laid in July 1997. Then in September 1997, you got involved at what stage?
Ms Cunningham: I breached him in September.
Senator Bryden: And then you were involved again until when?
Ms Cunningham: Right up until approximately November 20.
Senator Bryden: November 20, 1997?
Ms Cunningham: Yes, seven times in two months.
Senator Bryden: When did you lay the charge for harassment?
Ms Cunningham: The seventh time.
Senator Bryden: In November 1997, you laid the charge for harassment, and then
there was a 30-day psychiatric examination ordered?
Ms Cunningham: Yes. On approximately November 20, there was a show-cause hearing
as a result of the seventh charge of breach and one of criminal harassment that
I laid as a result. At that hearing, he was committed for a 30-day psychiatric
Senator Bryden: When was he back in court after that?
Ms Cunningham: He was back in court on December 23, and on that day he pled
Senator Bryden: December 23, 1997?
Ms Cunningham: That is correct.
Senator Bryden: When was he sentenced?
Ms Cunningham: That day.
Senator Bryden: And the sentence was?
Ms Cunningham: A two-year probationary period.
Senator Bryden: And anything else?
Ms Cunningham: Yes. There was a no-contact order as a condition of that
probation. In addition, he had to get psychiatric treatment as an out-patient.
Senator Bryden: What has he been doing since?
Ms Cunningham: Not a lot since then, simply because the victim has gone into
hiding and I have not heard much from her. I phone her about every six months.
Senator Bryden: I am trying to determine whether it would have been better to
throw him in jail for two years or to put him on probation for two years with
no contact and, allegedly, some ongoing treatment.
This is 1999. From what you have told me, this situation has continued for a
year and a half because the victim has hidden. However, she could have hidden
before and he could have still found her.
Ms Cunningham: I wish I had the answer to that. He has not contacted her. I
often look at that and ask myself, is it a result of my being in his face every
time he was breaching?
Senator Bryden: It could very well be. I will stop now because I have
interrupted you enough.
Ms Cunningham: Investigations of domestic violence or stalking crimes have
traditionally been handled similarly to other types of crimes by law
enforcement agencies, but in the past five or six years, there has been a
paradigm shift in thinking. The front-line investigators have not been provided
with significant training and tools to investigate these crimes -- especially
stalking -- because of the amount of investigative manpower involved.
There is a belief that we still rely significantly on the victim's testimony,
but there must be a move away from that practice. It is not that the victim is
not credible, but because of the dynamics it is difficult to testify. There
must be enhanced investigation, but we must also be able to provide the police
with the necessary tools and an understanding of what is happening with this
type of crime.
I am one of the trainers for the rest of the service and I try to tell the
trainees, "You must treat a victim like an informant. Do not assume that
she will go to court. It is up to us to investigate thoroughly to ensure that
we can go to court with this charge without having the victim's testimony."
The victim will often not show up out of fear or she will recant her story.
Unlike other crimes, police agencies must hold the perpetrator accountable.
There has been a shift in thinking from concentrating on what has occurred to
assessing the risks to the victim and what seemed to come between the
perpetrator and his target. That focus on the future, and risk assessment, is
more important than what has happened in the past. However, past behaviour is
the best indicator of what someone will do in the future. There must be a
change in methods of proving this type of crime and of assessing it. Although
we cannot predict crime, we must try to assess what will happen in the future.
That is what makes this crime different from others.
The criminal harassment law is a valuable tool but it is sorely underused. Out
of 12,000 complaints of domestic violence in the city of Calgary in one year,
95 charges of criminal harassment were laid. For the most part, the law is
misunderstood. It involves an incredible amount of investigation, which makes
it difficult for police to work on. There must be a shift in thinking and it
must not be left to the victim to assess risk. She must not have the burden of
proving the crime placed on her shoulders.
I wish to share with you the case of a woman who lived common law with a man for
approximately three years. In 1997, she left the relationship because it was
abusive. He was charged with criminal harassment as well as several breaches.
He was also under a probation order that stated he was not to have contact, as
well as a restraining order.
In Calgary, we lay charges as often as we can. He has broken this order and has
been charged with criminal harassment and breach of the order three times. A
week ago last Thursday, this matter went to court. The victim got on the stand
and gave her testimony, which took all afternoon. At about four in the
afternoon, cross-examination had not started. The judge then said, "I must
leave at four o'clock. I will leave it to the court to decide whether or not we
will finish today or adjourn." They then had a short adjournment. At that
time, the prosecutor walked out with the defence lawyer. As they walked back
into the court, the prosecutor winked and said, "Stay put. This is a good
solution." The accused decided to plead guilty. As a result of that, he
received a fine of $500 and no probation whatsoever.
The accused had already been subject to orders that he did not follow.
Everyone's mouth dropped because we no longer had control over that perpetrator
-- that is, unless he was placed under some sort of probation order or a
conditional sentence. That fine has absolutely no meaning. It is not connected
to the crime in any way. Believe me, that victim was pretty distressed over this
Mr. Griffin: We are dealing with individuals who will not take no for an answer.
When I met with Detective Cunningham today, three things struck me during our
conversation about this issue.
First, there is the realization that in virtually all domestic murder cases
where the spouses have been estranged, those victims were stalked by their
murderer. In other words, criminal harassment has led up to the taking of that
Second, as you heard this afternoon, these are not people who are new to the
court system. In most cases, we are dealing with a victim who, as a result of
the violence in the relationship, has made a decision to leave the offender but
the offender will not allow the relationship to be broken and still wants
control over the victim. We are dealing with a very obsessive situation.
Finally, there is the fact that the justice system has not responded adequately
to this issue. I know the committee is concerned about the use of incarceration
for offenders and the fact that incarcerating people does not necessarily solve
the problem. The reality is that we are presently incarcerating the victims.
The victims are the people who are living in hiding and who have electronic
devices in their homes through which they can contact police immediately if
their stalker intrudes into their residence.
The solution at the present time is to incarcerate the victims. We urge the
committee to take some steps to try to resolve these issues.
The Chairman: Thank you for an excellent presentation. I wish to congratulate
Detective Harman on the work that he has undertaken to put this presentation
together. There is a lot of reading here and a lot of background material for
Senator Oliver in particular. Detective Harman is in charge of my own personal
safety in Peel County; however, Detective Cunningham, you are in charge of the
safety of my children and grandchildren in Calgary. You have hit on two good
Senator Bryden: Everyone on this committee is concerned about this particular
issue. Harassment has been made a crime within the last six years. I think that
is what we were told last week. I do not know if that is because this sort of
thing did not happen during the last 130 years, or because our society has
changed so much that there is more of this type of thing happening, or because
society has become sufficiently sensitized to the issue to make it a crime.
Do you have any opinion on that?
Mr. Harman: Senator, one of the very first cases of stalking involved a woman
who would be described as a love-obsessional stalker under the typology
developed by the Los Angeles police. She stalked King George III and stood
outside Buckingham Palace for quite some time. She was probably the first
identified stalker and that was obviously some time ago.
Senator Bryden: What happened to her?
Mr. Harman: She was actually a French woman, interestingly enough, given the
times and the fact that France and England were not seeing eye to eye on most
things on the continent of Europe. She was convinced, in her dementia, that the
hand gestures he used when speaking in public were secret signals to her
expressing his love.
That is not the type of stalker we are discussing here. We are traditionally
talking about the simple obsessional stalker, the most dangerous type. This is
the kind of man who will return after a domestic relationship has ended and be
responsible for the typical homicide that we see, particularly of a woman.
The Los Angeles Police Department, in gathering their statistics, had a forensic
psychiatrist by the name of Michael Zona join their unit. He has discovered
that the average stalking time for this type of offender is three years, yet I
know of a woman in Hamilton who was stalked from the age of 14 through to 31.
It only stopped when the perpetrator was killed in a half-way house. This kind
of stalking has been going on for a long time.
Senator Bryden: Yet stalking, as such, just became a crime six years ago. That
is my point. You as police have known of this as a social problem and a
criminal problem for a long time. Have your associations been making
recommendations to make this a formal crime over the last 20 years? Were the
prosecutors requesting that? Were the women's associations calling for that?
Some very sensational criminal cases have begun with stalking and have ended
Senator Oliver: That is the answer. Hollywood producers and movie stars were
stalked and killed. That raised the awareness.
Ms Cunningham: I believe this is a societal change and the police fall into that
as well. Up until the last few years, if a victim died as result of domestic
stalking, it was her responsibility. We asked why anyone would stay in such a
relationship. There was no understanding within society of the issues. Only in
the 1970s was awareness raised that children who live with domestic abuse are
affected by it. Before that, it was felt that if children were in the home but
asleep in their beds, they were not affected by domestic violence.
Dr. Peter Jaffe, of the London Family Court project, said recently that police
reports often state that the children were not present during an assault, but
that if you actually talk to the children, you will hear that they pretended to
be asleep so they would not be part of it.
Some sensational cases have come to light. Some movies like Play Misty for Me
and Fatal Attraction have brought the issue to the forefront in a negative way.
In our information age, it is much easier to stalk a victim now than it was
years ago. It is easier to get from one side of the city to the other. On the
Internet, you can home in on someone's Web address very quickly. The world is
changing and it is becoming easier to stalk people.
We also lose our sense of community in big cities. Our neighbours may not know
that a person who is stalking does not belong in the neighbourhood.
Senator Bryden: Is the purpose of this bill to try to prevent harm to the
victim? We have heard evidence that we need an emphasis on police training,
community support, education, and the enforcement of probationary terms.
A substantial report was prepared for the Minister of Justice in 1996-97 by two
consulting firms on the implementation of Section 264. There was a limited
amount of data available. I have not read it in its entirety, but the report
includes interviews with victims and a review of arrests and charges and
That report recommends that certain measures be taken in response to their
findings. They recommend interim measures for desirable results and the
development of guidelines.
The Chairman: Senator Bryden, the witnesses may want to know the page you are
Senator Bryden: I am looking at the recommendations at page xi. They include
what you are doing in Calgary and in Peel; that is, the training of the police.
It also includes victims' services, victim-witness services, systematic
follow-up, et cetera. Nowhere is there a recommendation to increase the penalty
or to make stalkers subject to dangerous offender applications.
Mr. Harman commented that, in canvassing your police officers and detectives,
you found no one who objected to increasing the length of sentences. I was a
provincial deputy attorney general for a number of years. I also never found a
police officer who objected to increasing punishments, except in the case of
capital punishment. Some of them had problems with their consciences.
The institution of justice is there for our protection, yet we constantly run
into the bad situation of a plea bargain with a bad result. The memory of that
sort of situation lives on in that police organization for a very long time,
unfortunately. However, that is only a preface to my real concern.
I know the proposed amendments increasing penalties will increase the feeling of
safety for victims and will tell them that their complaint was taken seriously
by the judicial system and, by extension, Canadian society.
My concern is that making the victim "feel" safer does not necessarily
make the victim safer in reality. Sometimes we use penalties. In police
business, we sometimes must carry extra fire power to make people feel more
I have found that that is a substitute. They feel more secure because there will
be a 10-year maximum sentence; however, that 10-year sentence has no impact
whatsoever on stalkers. It is up to five years now.
Is there not a danger that this might become a false shield, and maybe an
excuse, to the people who allocate resources in cities for training police
officers? The penalty is as high as it is for some very vicious crimes, and it
can sometimes result in vicious crimes.
Are you concerned, as I am, that just increasing the penalty acts, not as a help
but as a palliative? People say that we have these huge penalties. Therefore,
no one will do this any more because if they get caught five times, they could
go to jail for years and be labelled a dangerous offender.
That is not your problem. Your problem, as you have explained it to us, is that
you must interface with the victim and try to protect that victim in the long
term. Is there a danger?
Ms Cunningham: The key to this is managing the risk. If higher sentences will
manage the offender, then I believe that the goal will have been met.
Senator Bryden: You said "if."
Ms Cunningham: There will always be that "if." However, we need to do
a better job of risk assessment as a community, not just the police, but the
community and the judges.
I will give you an example. I was talking to a psychiatrist in Calgary who does
many "show causes." His point was that we must get these offenders
into the community because we must gauge what they will do when they are out
there. If you wait until warrant expiry, they are out and they will move right
next door to the victim.
Just locking them away will not do it. It is only one tool and the message that
goes with it to crown attorneys and judges is better than sentencing alone.
There should be directives to attorneys general saying that this is a crime,
and saying that we will do something about this must accompany it.
If it is done in conjunction with making the penalty higher, there would not be
police officers who wonder why they should complete a comprehensive
investigation when all that will result is a fine. My response to that is that
we are there to ensure the safety of the victim.
Senator Bryden: We could have a long discussion about that.
Ms Cunningham: Yes. We must come up with a number of tools to manage that risk.
In cases where they breach court orders again and again and are convicted of
criminal harassment and yet nothing is done, those victims will not come to us.
They will see that nothing happens, begin to assess their own risk, and will
manage that threat as best they can.
Senator Bryden: What are you recommending be done if jail is not the answer?
Ms Cunningham: Jail is one option but there must be many others. I do not
believe psychiatrists and psychologists are the only factors involved. Someone
who stalks continually needs to be assessed, but when a report says that this
person is narcissistic, the court should have the training to determine if that
means the person is dangerous or not.
The two doctors from Simon Fraser University, of whom I spoke, came to Calgary
last Friday. We invited justices and judges, and we had a good response. At the
end of the day, only two showed up. However, that was a great start because I
do not believe there is a judge or justice who wants to release someone who
will go out and kill. They need to be provided with the tools.
It is up to the entire community to do proper risk assessing. We need to have
conditional sentences and perhaps there should be minimum sentencing for people
who will not follow court orders.
In another case two weeks ago, after show cause, the crown attorney asked for a
psychiatric assessment on competence and fitness. After the psychiatrist had
spent his 10 minutes with the offender, he approached the constable and said
that the man was very dangerous. The constable responded that she knew that;
she had been the arresting officer. The psychiatrist noted that perhaps she did
not understand that the man was really dangerous. What he meant was, there was
nothing that he could do as a psychiatrist to help the man. He fully understood
what he was doing, had no psychosis or anti-social ailments, he was just a
criminal. The psychiatrist said that the man was dangerous because he could not
cure this man.
In cases like that, the courts are very conservative. They are not throwing
people in jail for these crimes. That is the message that will be sent if we
increase it to 10 years. If that is accompanied by directives, we will make a
point that the community will have to sit up and take notice of.
Mr. Harman: Senator, the issue we identified most commonly in my verbal survey
was the inclusion under Section 752 of the Criminal Code.
I will take you through one case, that of Mr. "B" from Brampton,
Ontario. I first charged him in 1987 with mischief. He would force his way into
his ex-wife's house or stand outside the home. He worked for Canada Post and
intercepted her mail. The only option I had available to me at that time,
through a lot of good, hard work on the part of myself and my partner, was to
charge him with mischief for stopping her from enjoying her place in a normal
Criminal harassment was a great tool. His modus operandi is to be absolutely
charming and he has now been involved with five other women. He has criminally
harassed every one of them. In December last year, he was again in for a bail
hearing. The judge told him that he would not be released over Christmas or New
Year. Those dates had too much significance for him and he would therefore
remain in jail until his trial date in February. The judge felt that he was too
dangerous to be let out.
There are now five women that we know of in Brampton, along with their immediate
and extended families, who live in absolute fear of this man, who is back out
in the community. His psychiatric assessment says that he is not curable. He
will find someone else to go to and we cannot make a dangerous offender
application on him.
I will give you another example. "George" has an extensive criminal
history, most of which involves his girlfriends, sex assaults in Toronto, and
mischief charges that are similar to criminal harassment, which did not exist
when he first became active.
George has criminally harassed two more partners and sexually assaulted the
16-year-old daughter of his latest girlfriend. He is currently incarcerated and
has such a problem with women that the female guards at the detention centre
will not deal with him.
We had a female investigator from 22 division ask him about the incident with
the 16-year-old daughter of his girlfriend -- he sat and absolutely shook. The
only charges currently outstanding against this man are for criminal
harassment. He is dangerous to women. There is very little we can do to protect
women beyond the maximum sentence under criminal harassment, and that is not
Senator Bryden: What would you like to be able to do?
Mr. Harman: I would like to have the ability to declare him a dangerous
Senator Bryden: Does that not mean that he goes to jail indefinitely, unless
released by order of the Attorney General?
Mr. Harman: Yes.
Senator Bryden: It is a very difficult judgement to make. You would have the
right to make an application to a judge to have him declared a dangerous
offender. Would you call expert witnesses to say that even though he has only
harassed people, he is likely to go beyond that, or likely to continue doing
Senator Oliver: Plus assessment.
Mr. Harman: There would be a full hearing under 752 and all evidence would be
called. His past dealings and probably a good number of his victims would be
Senator Bryden: I would like you to explain a sentence. "Any period of
incarceration for an individual like this" -- and you are demonstrating
him to be an obsessive individual -- "any period of incarceration for an
individual like this is treated as a hiatus in the overall stalking."
Mr. Harman: A simple obsessional stalker is put away for a short, sharp
sentence. The average time spent stalking is three years. If you are looking at
a short sentence, let us say two months, the average stalking time would be 3
years and two months. It is only a break in that individual's stalking time.
Senator Bryden: If he is sentenced to three years, is it three years and three
Mr. Harman: Now we are beginning to get into a break in time, and it is not
nearly as conclusive.
Senator Bryden: Where would you draw the line? Would six months add another six?
Mr. Harman: That must be assessed on an individual basis.
Ms Cunningham: In our unit, we win these cases if we can prove to a judge that
the man needs a 30-day psychological assessment and it is helpful if it happens
at a very early stage. Often, you do not have to put that person on the stand.
It is a police hearing as opposed to a trial, and for that reason you can get
into his entire background. If we are successful at the show-cause stage, we
have won the case because, usually, he will back off. I cannot speak for every
stalker out there, but I feel the success must happen at the early stages. A
case can go on for a long time because the process is a long one. If we win
early and incarcerate him for a month or 365 days, then he will usually back
off. In those cases, there is a clear message that we are watching him and he
will not go back to that victim.
Senator Bryden: I thought you were talking about the 30-day psychiatric
Ms Cunningham: Yes, it is like a jail sentence.
Senator Bryden: He is under treatment or assessment.
Ms Cunningham: Yes. At the end of the six-month process, police say to each
other, "We do not care as long as we have some sort of control to end that
behaviour." We can say to the offender, "We are on to you. We know
what you are doing and will have you assessed. In 30 days it will be over."
Senator Bryden: How does that fit with what Mr. Harman said about having a
short, sharp sentence in which you are adding to the average three years?
Mr. Harman: If you are interested in the treatment of criminal harassers and
want to know what is the most successful treatment, I suggest that the
committee speak to Dr. Peter Collins who works at the Ontario Provincial Police
Behavioural Sciences Unit. He worked out of the Clark Institute in Toronto for
some time and is now working with the Behavioural Sciences Unit of the OPP. He
studied stalking and stalkers to some degree and that study might give you some
deeper insight into which treatments he has found to be successful or
Mr. Griffin: We are not saying this is a panacea, or that if this bill is
adopted it will solve the problem. We are dealing with a social issue
predominant in our society, not unlike impaired driving, where in the old days
you would carry your beer bottle between your legs while going for a drive.
Through minimum sentencing, public awareness, education, directives from
attorneys general and prosecutors, the severity of the public reaction to
impaired driving increased and there was intervention. We are on that cycle. I
suggest that, as exhibited today, police forces are moving towards the
recommendations that came out of the 1996 Justice report. However, there are
many other issues yet to be resolved. We hear from the officers involved in the
situations that often a prosecutor with a heavy court load views these offences
as relatively minor. We are asking for the fines to be removed. There is no
place for a $500 fine, which does not provide management of risk beyond the
date of conviction.
Senator Bryden: What about restitution? By that I mean, if the person was unable
to work and lost $20,000 in earnings, would restitution be possible?
Mr. Griffin: One of the difficulties with that is the danger of inviting
continued communication -- even if through a third party -- between the victim
and the offender. We are inviting the victim to remain under the control or
support of the offender. Will they be relying on that offender for some type of
income or continued support? We are advocating intervention and closure of that
relationship to prevent continued contact between victim and offender. When
discussing the restitution question, we are concerned it might have the
Senator Bryden: No matter how hard we try, we will not be able to prevent all
serious crimes. Is that not a fair statement? We can legislate and educate and
teach, but we can only reduce and ease the harm to the victims. I wish to make
this comment: I may, unwillingly, appear to be biased because I happen to have
been involved in a domestic violence situation in New Brunswick. The male
partner was under a restraining order, which he continuously breached. He had
also been jailed. When he came out, he broke into the female partner's trailer
and the police were called.
He was taken in to custody, incarcerated and so on, but he just kept coming
back. It did not have a happy ending. The female partner got a 28-gauge shotgun
and when he finally got into the bedroom of the trailer on about the fifth
occasion, she just blew him away. Then, of course, she ended up being charged
with second degree murder, but she was found not guilty on the basis of
self-defence. I give you that example only to show that I recognize the very
difficult situation with which we are dealing. We are grappling here with some
partial solutions proposed in this bill. We are trying to determine whether
they will be helpful or whether they will divert attention from the real
Mr. Griffin: My response would be something that has come out in the evidence
you have heard. Many victims, having gone through the system once, do not rely
on it to protect them. We heard the example that Senator Oliver gave of the
husband going to watch his child skate on the pond. The fact is that victims
are having to take their own steps, such as electronic devices, to monitor their
own safety. This bill is not necessarily going to solve the problem, but at the
end of the day, the victims do not feel confident that the justice system will
protect them. Perhaps that is why some people take the law into their own
hands, and why families become estranged when they must move to other
communities. Should the onus be on the victim to solve it?
Senator Nolin: Thank you very much for appearing and for making the effort to
prepare yourself for your testimony.
Mr. Harman, I need some explanation of terms in your document. I am a
francophone so I probably do not understand the subtlety of your English. In
the last paragraph regarding police training, what does "clearance"
mean? You talk about an 89 per cent clearance rate out of 215 occurrences, and
then you say that about 62 per cent of occurrences are cleared by criminal
charge. How do you reconcile those figures?
Mr. Harman: Under the guidelines given to us by Statistics Canada, occurrences
can be cleared in different ways. One might be by way of caution, so that would
not be a criminal charge. Others might be cleared as unfounded.
Senator Nolin: Clearance means the result after investigation of those 215
Mr. Harman: Yes. However, the charge rate, the 62 per cent resulting in criminal
charges, is actually fairly high compared to other criminal offences.
Senator Nolin: That is why I asked for that explanation. I was able to
understand the last sentence. However, I have difficulty in reconciling that
with what Ms Cunningham told us. She said there are 1,000 family violence
events per month, which is 12,000 a year, yet at the end of the year, only 95
events result in criminal charges.
Ms Cunningham: No, only 95 result in criminal harassment charges.
Senator Nolin: How does that compare with the prevalence in Peel? The two
populations are relatively similar.
Ms Cunningham: Perhaps I did not make my point clearly. Those were criminal
harassment charges. There were 95 criminal harassment charges, but on average,
the Calgary police lay 187 assault charges per month. Out of that 1,000, there
are assault charges. The criminal harassment charge is not laid very often.
Senator Nolin: I wish to focus on criminal harassment. I want to discuss the
kind of relationship you have with the Crown prosecutor and the administration
of justice. We are trying to make a good criminal and penal law system but the
administration of justice is not a federal jurisdiction. It belongs to the
provinces. That is why I wish to know from you what kind of working relationship
you have with Crown prosecutors, and please be honest.
Ms Cunningham: It has been very trying. However, there is a recognition, not
just in Calgary but across the country, that we must work together more
closely. As a result, we now have two Crown prosecutors who will work solely
with our unit.
Senator Nolin: That is as a result of your new budget?
Ms Cunningham: That is correct. They are actually co-ordinators or screeners and
deal with the show-cause hearings and first appearances. They are not doing the
trial cases. Our situation is improving. However, the Crown prosecutors are
underpaid and overworked. One criminal harassment trial can last an entire day
or an entire afternoon because of the number of elements to prove, such as the
number of times the victim was contacted. In addition, the Crown prosecutor must
prove there was reasonable fear. It is not something you can do just by putting
the victim on the stand to say, "I was afraid." The fear must be
reasonable, so the prosecutor must build an entire case, and they are very
difficult cases. That is one reason why we do not see many cases going to trial.
It is simply easier to plea bargain than to spend all day proving an offence
and then end up with a $500 fine at the end.
Senator Nolin: Was it one of those two prosecutors or co-ordinators who made
that plea bargain two weeks ago?
Ms Cunningham: No. That was in trial.
Senator Nolin: What was the reaction of your coordinators when they heard that?
Ms Cunningham: They basically said that that is the system. It is not a
feel-good system. The entire process is not a feel-good process and everyone
knows that. That is why you go to the civil courts. At the end of the day, we
have done our job.
The Crown's focus is entirely different. They are there to concentrate on what
has happened in the past. I have made a point of saying to the Crown, "If
you do not get a good conviction, our job as police officers has only begun
when that guy walks out the door because we must now do a huge assessment."
Allow me to give you an example of a case that is still proceeding. This man was
under a court order last June to have no contact with a woman. He had contact
with this woman. He took her up to the top of Canada Olympic Park in the middle
of the night and raped her. The next day, he took her to a camp ground where he
assaulted her and injured her eye. He then took her from hospital to hospital,
where as soon as questions were asked and the staff realized the stories did
not quite match, the doctors called the police. We followed these people to as
far as away as Loomis, Washington. Eventually, four days later, they came back
to Canada because they could not get medical treatment down there. By that
time, the blood in the back of her eye had built up so much that she lost her
sight. She finally went to St. Mary's Hospital in New Westminster. It was a
We could not arrest him because we could not find him. I sent out photos to the
hospital and to the police in New Westminster and Surrey and other places near
the hospital. Eventually I flew out and brought the victim back because that
was the only way I knew that she would be safe. He was arrested two weeks later
in Vancouver on a Canada-wide warrant. It was easy to show that he should be
held in custody, and he was. However, in November, in a show-cause hearing on
bail revocation, he was released. As a result, I had what we call our "strike
force" unit, our undercover unit, which is comprised of three teams, set
up over the November 11 holiday. We had constant surveillance on him for three
days because I was convinced he was going to kill her. Eventually, after three
days, he breached one of his conditions by being involved in a drug
interaction, and as a result of that, we locked him up again.
As to the relationship with the Crown, their attitude is, "We will deal
with the crime at hand." They do not have the foresight to address what
will happen. That is not their issue, that is a police issue. The police must
deal with that threat management after they walk out of court and we need the
resources in order to do that. I do not know if that is locking people up; it
is mostly a matter of using a broad range of tactics, depending on the stalker.
Senator Nolin: I gather that the Region of Peel has started earlier than most to
deal with this problem and I am sure we could learn much from their experience.
Probably the relationship you already have with the Crown is better, or could
it be improved?
Mr. Harman: As a police agency, we have always had an excellent relationship
with our Crown attorney's office. The current Crown attorney is Paul Taylor,
who is well respected within the law community of Ontario.
As an example, I can call Paul Taylor at home or at his office, and since I am a
detective, he will speak to me. He is in charge of a Crown office of 30 people.
I do agree that the Crown lawyers are overworked when it comes to issues of
domestic violence. That area was explored in a study done by The Toronto Star,
comparing the way that domestic violence was handled in Ontario, specifically
Metro Toronto at that time, with San Diego. San Diego was held up as the way to
deal with domestic violence.
In San Diego, a district attorney will have one case in court at a time. Our
Crown counsel come into our court having probably reviewed a stack of 30 to 50
prosecutions that they will run that day. On that aspect, they are overworked.
Do they have the ability to devote as much attention as they should to some of
these issues? Probably not.
Senator Nolin: Mr. Griffin, what kind of lobbying is your association
undertaking to convince the provincial attorneys general to be more focused and
to give more emphasis, support and direction to their Crown prosecutors?
Mr. Griffin: On this particular issue we have not. The catalyst for our
appearance today was Senator Oliver's bill. That prompted us to make contact
with Ms Cunningham and others to discuss this concern.
We have a number of other justice issues about which we are concerned, but
certainly this does have some appeal for us because it is a situation that is
prevalent in many homes and families. There is concern there.
We would support the suggestion for provincial directives to Crown prosecutors
to increase the attention given to this subject. Again, that becomes a resource
question for the Crown.
My experience with the Crown attorneys has been that if they are walking into
court every day with a docket of 15 names, they will be dealing with those as
checkers more than anything else. If you can get that one off on a satisfactory
plea and reduce your list for the day, then it comes down to a numbers game.
Senator Nolin: Ms Cunningham, you said that people are dying. Is that of your
personal knowledge of situations in Calgary?
Ms Cunningham: Absolutely.
Senator Nolin: Would you provide me with the magnitude?
Ms Cunningham: In terms of numbers?
Senator Nolin: Yes.
Ms Cunningham: Last year, there were 11 domestic homicides in Calgary. Of that,
one was as a result of a police shooting. The police shot a man who was trying
to slit the throat of a woman protecting a child. Three people were killed in
one incident last year; a man killed his two children as well as the
stepmother, who was about to leave the relationship. He killed all three of them
over a period of approximately 15, 16 hours.
Our numbers skyrocket when you hear things like this. There was a case in
Calgary, approximately one month ago, where a man killed two children. He
suffocated them. A case was made that the babysitter killed the children. In
fact, this man was fixated on the mother of those two children. She had phoned
and said she was not coming home that night because the person who was driving
her was drunk. The father became angry and killed the two children.
I do not know if the numbers are going up; however, until a few years ago, there
were no statistics kept as to whether or not a homicide was domestic. These
recent numbers have enabled us to differentiate the domestic from the crimes
committed by strangers.
The Chairman: Have you differentiated the stranger from the domestic and the
Ms Cunningham: No, we have not. There must be resources in place to create
databases. The numbers out there are not hard and fast.
The definition of "domestic" differs between our department and
Alberta Justice. Alberta Justice has a definition encompassing between husband
and wife, married or co-habiting. Our definition is brother, sister, the
children, aunts, uncles, anyone within that group. Therefore the numbers are not
comparable. There need to be more resources in this area so that we know what
we are dealing with. I do not believe we have touched the tip of the iceberg
There will always be crime. I have been a police officer for over 18 years and I
have been to dozens of domestic calls. My attitude used to be that there is not
much we can do, this cycle will continue. It is only in the past two years of
my being in this unit that I feel that I am actually making a difference. We
are interrupting that cycle of abuse and stalking is part of that cycle.
We actually save people from themselves. The perpetrator is often homicidal or
suicidal. I believe that public education will make a big difference. The key
in public education is to identify those children who are being affected and
are becoming the abusers. I believe we can make an impact.
Senator Bryden: I was not questioning that. I believe in that 100 per cent.
In order to cover Charter rights and all of the things that occur, people will
slip through the system. Other people will be caught by the system who should
not have been. However, that should not permit any of us to give up on doing
everything we can.
My concern is, are we concentrating on the right levers. I tend to be more in
favour of most of the levers you speak about rather than the other end of it.
Senator Robichaud: You have all said that you agree with the bill that is before
us and that motivated you to come forward. However, I also hear from you that
there is a general lack of sensitivity as to the seriousness of that crime. The
attitude is, well, he is only sending her flowers, or it is only a telephone
call, and then you can plea bargain or negotiate and get it off the slate and
away it goes.
If we do go through with these amendments, will everyone just fade away for a
while? If so, we will not have the desired impact on society in general and on
the system. We consider this to be a very serious crime that leads to the many
things you have mentioned. If we do not establish its seriousness, then it is
hard to go on to the next step, is it not? How do we do it?
Ms Cunningham: Lengthening the sentence to ten years from five will send a
message that it is serious, and that is more important than what the courts
will do. It is not out of line with the rest of the charging sections of the
Criminal Code that are used all the time. Five years is very low in the
Criminal Code. I do not think for one moment that a judge would ever sentence
someone to the maximum sentence for this. However, that is the first step in
recognizing that it is a serious crime that affects everyone and that society
will not put up with it. It is the message that is important.
Senator Robichaud: The message must be more than that.
Ms Cunningham: In the form of directives to attorneys general, I believe we have
seen, in drinking and driving, that there has been a big turn-around in the
last few years. We will not stop the hardened drinker, but we will stop others.
I am hoping that in increasing the penalties, we will send the message. It is
not for the high-risk ones and we will still need to maintain electronic
monitoring. We are dealing with the low-to-moderate or moderate-to-high risk
people. I believe that is the group with the greatest numbers, although I do
not have the data to support that.
I do not believe they are all high risk, although they could become so if we do
not maintain some control over them. We need to interrupt that cycle. It needs
to go along with directives and perhaps conditional sentencing, so that when
someone breaches a condition, they go back to jail, not just as a threat, but
are actually put back in jail.
Senator Robichaud: You are somewhat influenced. You said you decided that the
seventh breach was the time to act; however, it went to seven breaches. All the
other officers who do your kind of work probably feel the same. How do we
change the cycle? After two or three, there is a breach, which leads to more
serious things, so we cut it off right away.
Ms Cunningham: I actually laid all seven charges. The difficulty came with that
revolving door. Actually, I could not get this fellow past a justice of the
peace initially. Eventually, we had him held over until the next day on the
later charges, and it was still a revolving door. Before I could finish the
paperwork, he was out, literally. If we could have hit this fellow early, at the
very first breach, and said, "You will be held," he would have pled
guilty and been out within a week, but that is okay. At least he would have
been in for that week, and the message would have been, "We will not let
you out until the whole process has been finished in court."
It is difficult because of the numbers. I know that the numbers will be high if
people start understanding this law. We cannot lock everyone up, but we need to
send a clear message, along with directives, that we will treat this seriously.
Domestic abuse and stalking are not the responsibility of the victim, but that
is where the focus has been for years. The police and the Crown should be the
ones to prove the risk to the judges.
Senator Moore: Several weeks ago, I suggested to Senator Oliver that it might be
worthwhile to consider a minimum sentence approach. Listening to you this
afternoon, I get the feeling that that might not be a good idea. It might just
be a hiatus and not provide the deterrent that we need.
Is it better to have a minimum sentence or to increase the maximum sentence? In
the real world, in terms of the sentences that are likely to be meted out by
the court, is it more likely that they would give a repeat offender a minimum
sentence to get the message through, or that they would give out a much more
lengthy maximum sentence?
Mr. Griffin: We need both. We need to increase the maximum to go hand and hand
with the dangerous offender issue. The 10 years is required for that. As well,
from the Canadian Police Association's perspective, when you have situations
where people are breaching court orders or probation orders or breaching
conditions of release on these types of offences, and/or have prior convictions
and are convicted subsequently, minimum sentences would be appropriate.
Certainly that requires the court to then go beyond the use of a fine or
another conditional sentence or a second chance to obey the order. Minimum
sentences for first offences would be viewed as extreme.
Senator Moore: Detective Harman, I get the impression that you do not think, for
example, that a minimum sentence of three months will get the message through
that this is something they must stop doing.
Mr. Harman: That is quite correct, senator, I do not. We do not understand, in
society in general, the stalker's degree of obsession. A young woman in
Hamilton, Ontario, was the victim of a stalker for 17 years. It started when
she was in junior high school with notes, her locker being glued shut, him
hanging around outside her house, and that continued throughout high school. The
Los Angeles police have an excellent example of a love-obsessional stalker. She
met the gentleman at a university class, and she started to show up everywhere
that he did. He could not understand how she knew where he was going to be. In
Los Angeles, because of the earthquakes, many of the homes are built on cement
pylons. She had gone to Radio Shack, got the alligator clip telephone, crawled
underneath his house, and was actually receiving his calls and messages,
sometimes before he was.
Police normally deal with someone of an average or below average IQ, low
motivation, low self-concept, and low self-esteem. The stalker is the exact
opposite of that. Then you add in the high degree of obsession. That is what we
do not understand.
I would certainly be in support of Senator Oliver's proposal for those
individuals with a high degree of obsession. In Brampton, we have five women
and their extended families paying the price for one person's series of
obsessions. We need to have some type of legislation to at least allow a court
to consider him a dangerous offender.
Senator Moore: Is there a period of time that you would consider to be a minimum
sentence that would send a message? For instance, would it be three months or
six months? Does it have to be a year? In your experience, and from what you
know through working in this area of the law, what do you think might be a
period of time that would register with one of these obsessive people as being a
Mr. Harman: I do not feel qualified to answer that question. Dr. Peter Collins
is probably the best person to give you an authoritative answer. In my
experience, I would say it would almost have to be a case-by-case analysis of
Senator Moore: I thought you might say that, considering the range of examples
you have all given.
Ms Cunningham: A minimum sentence is a bit of a double-edged sword because
although it sends a very strong message, I believe judges are reluctant to find
someone guilty when it exists. In principle, I agree with it. However, in terms
of how it is utilized, I would be fearful that no one would be found guilty of
The point is that we treat criminal harassment as something very minor. I saw a
defence lawyer on my way here who said -- it is a far cry from what you are
talking about -- "Get the conviction on the criminal harassment, because
down the road when he kills her, you have already proven your case that it was
deliberate and planned." That is an awful thing to tell a victim, and I
would never do that. The point is, I want to see convictions for criminal
Senator Moore: You are building the file. However, as my colleague, Senator
Robichaud, said, how many times do we have to see something happen before we
say to the justice system, "Enough already"? We must somehow
intervene or do something before someone is murdered, at which point we can
say, "There, we have built the file that proves this is a plan." I
think that was your point, Senator Robichaud, was it not?
Senator Robichaud: Yes. I am not blaming you. You are in the situation where you
do what you can at a certain time. However, some other people must react to
what you are doing so that you can take the case through. This is why I say
that perhaps those other people are not aware of what this crime can lead to.
I am now aware of that because I have listened to people coming here before us.
If I had not listened to those people, I would not have given it the thought
that I have. I suppose some judges, and some people in the system, unless they
hear that, have a tendency to sort of dismiss it.
The Chairman: Detective Cunningham, you have told us how the Calgary police are
attempting to reach out to the Crown prosecutors and educate them. What is
happening in Peel? Is there anything in the way of reaching out beyond the
police themselves to the Crown prosecutors to try to get them to lay charges?
Mr. Harman: I do not feel that the laying of charges is a real issue in Peel.
The Crown prosecutors have attended seminars with the police and probation
officers. We just finished having the SARA model presented to us. Three Crown
prosecutors attended that training with the police and probation officers.
As I said before, I get fairly good cooperation from the Crown's office,
although we are perhaps a little behind in that we do not have a specialized
unit such as they have in Calgary. It is my experience that you really do not
become sensitive to the issue -- and Senator Moore has expressed that to some
degree as well -- until you are exposed to it on an almost daily basis. You do
not understand the total impact until you have that constant exposure.
The Chairman: If both Calgary and Peel have been extolled as areas where this
sort of thing is going on, perhaps you can tell me what is happening in other
areas. Are other police forces becoming sensitized to this issue and starting
to work toward solutions?
Mr. Harman: Calgary is one example. Vancouver has a specialized criminal
harassment unit and Edmonton has an excellent management group. By the end of
July, the Ottawa-Carleton police will probably be one of the premier examples
of those responding to criminal harassment and domestic violence in the
country. They will be following the example of the Hamilton-Wentworth police,
where they have first responders who are highly and specially trained. They will
be going out and doing the risk assessments. They will be taking still cameras
and video cameras to the scenes of domestic violence. They will have follow-up
units of detectives that will be somewhat similar to Calgary's. They will be
managing the cases for the uniformed officers, as well as investigating those
of higher risk.
What will be unique to Ottawa is that they will have someone at the courts to
identify the high risk cases that are not already identified. That person will
meet with social services and other social agencies so that the victim in the
case will be plugged into support services very quickly. I believe that will
alleviate some of the concerns that Detective Cunningham talked about in her
jurisdiction with lack of support for victims.
Fortunately, in our region, we have an excellent victim services bureau that
presently does most of that work for us. I believe that the Ottawa example will
be one of the police and community coming together.
There are examples throughout the country of police services making concrete
steps to address the issues of criminal harassment, and by extension, domestic
The Chairman: That is very encouraging.
Senator Moore: The education of the public is important, as is the education of
Crown prosecutors. Aside from the courtroom experience, you try to have
workshops such as those conducted by Detective Cunningham. Is there one judge
in the country who has become sensitive to this issue and who might be
encouraged to give a talk to his fellow judges?
Ms Cunningham: Judge Schulman of Winnipeg hit every important point in a
judgment delivered in June 1997 in a matter involving someone by the name of
Lavoie. I did not read it until six months ago, when I realized I was
reinventing the wheel. He had already made these recommendations.
This workshop, which we held last Friday, was interesting because we did not
know that we could even approach judges and justices. We sent the invitations
out as a result of speaking to the head of the court preparation and
restraining order program in Calgary. She said they are very interested in this
kind of thing because they do not want to release people who will go out and
kill. Therefore, we opened up the invitation to the judges and justices. Nine
responded, and in the end, two judges came. I believe 10 Crown prosecutors also
People really want this information. It is just a matter of the cost and the
time available. It is happening though.
Senator Moore: I think that is encouraging.
Senator Oliver: I wish to echo the comments of the chairman and other senators
in thanking you for coming. Your presentations have been excellent and very
helpful to our understanding of what we are trying to do in this bill, as it is
or as amended.
My first question deals with a section in your brochure on conditional and
absolute discharges. I will put a hypothetical situation to you. If a person
knows that there is a $50 bill in someone else's house and they enter and they
have the intention, the mens rea, and they have the actus reus and take the
money, that is theft. They go to court and plead guilty and the judge says, "It
is a first offence. I will find you guilty but I will give you an absolute
discharge," and at the end of three years there is no longer a record. You
say here the following:
I would also encourage the Committee to look seriously at the keeping of
Criminal Records. Currently, anyone receiving an Absolute or Conditional
Discharge has that record automatically expunged after three years from the
date of conviction. Therefore there is no record for the Police, Crown
Attorneys, or Probation Officers to access should a perpetrator commit a similar
offence of Criminal Harassment or other Family Violence offence.
It seems to me that in the hypothetical situation with the $50 bill I just gave
you, our jurisprudence has said that we think it is right that there not be a
criminal record at the end of three years. Are you saying that we should go
back and revisit that kind of public policy that was made years ago?
Mr. Harman: Yes, I am.
Senator Oliver: For what reason?
Mr. Harman: When you look at the dynamics involved in domestic violence in
particular, and criminal harassment specifically, these are repetitive crimes
and the chances of these individuals receiving absolute or conditional
discharges are fairly significant. They should not be treated as first-time
offenders. The conditional discharge, in my recollection, was created in
response to the individual found with the so-called "dime bag" of
marijuana in the late 1960s and 1970s. It is entirely appropriate for someone
who received that kind of disposition for that type of crime, or that property
crime be punished in that way and that record expunged. However, domestic
violence and criminal harassment, I submit to you, is a different kind of
crime. It tends to be repetitive, and it is likely that the culprits will go on
to other victims. They should not be treated as first-time offenders every time.
Mr. "B" from Brampton might be a fine example for you to look at from
the conditional discharge aspect, because each time he was sentenced, he was "good"
for the minimum time required to obtain a pardon. Each time he got a pardon,
until on the last occasion we were able to discover his previous history and go
back and open up those old cases. These are highly motivated, highly intelligent
people. I believe that the conditional discharge is inappropriate in cases of
Senator Oliver: That clarifies it for me.
My second question deals with the cumulative effect of sexual harassment and
stalking. I wish to ask you a few leading questions to make my point.
Let us assume an unwanted relationship in the workplace, or a broken
relationship that one party feels is over, and it begins with the other party
sending a love note. Following that, there is a telephone call or series of
telephone calls. Then very often there are flowers sent with a note. After
that, there could be a visit to the home. All of these activities are cumulative
and they continue day after day, week after week, and they get worse and become
more intense. Suddenly there is a dead cat on the porch or a lewd photograph of
some kind is sent to the workplace. The activities become more and more
threatening and the culprit displays an obsession that leads to a physical
assault of some kind -- bodily harm -- a sexual assault, or finally murder.
Is that the way you see stalking in its worst form, becoming cumulatively worse,
and finally often ending in death?
Ms Cunningham: Yes, except that it often starts with love notes and perhaps
flowers, then it will go to a hate note, and then back to a love note and then
a hate note again. In most circumstances, it is not just a steady escalation,
they vacillate back and forth between the love/hate feelings. "If I cannot
have you, nobody else will."
When we have tape recorded phone calls from the perpetrators, in one 10- minute
call they go from "I cannot live without you because you are absolutely
everything to me," to "I absolutely hate you." It happens very
quickly, and they will go right back to "I am only doing this because I
love you and I have to show you that I do." They are all over the map,
back and forth; however, there is usually a steady escalation.
Our unit not been around very long so I cannot give you long-term statistics. I
can tell you that certainly everything that I have read on domestic violence,
which is quite a bit because I am fascinated with this crime, describes a
steady escalation. It very rarely stops unless there is an interruption in that
I am a police officer, so I can effect that intervention through the criminal
justice system. However, these cases always seem to escalate until people reach
an age of 70, 71 years, and then it seems to die away and we never hear about
it again. Either people learn to live with it or they stop, I just do not know
Senator Oliver: You agree there is an escalation, and I gather that because you
are here, it is your view that Bill S-17 goes at least part way in bringing
some form of interruption to this cycle?
Ms Cunningham: That is well put, because there must be an interruption.
Otherwise the victim often thinks that she can manage the situation as long as
she knows where he is and she can react in a certain way that will prevent the
escalation. However, she cannot; she is too close to the situation. Victims
often minimize what is going on. You do not hear what is truly happening in the
relationship until you are listening and it dawns on you that your partner has
never called you those names. To my way of thinking, that is abusive, but they
often do not even see it that way, never mind the physical part that goes with
Everything I have read indicates there will be an escalation unless there is an
Senator Oliver: One of the questions that Senator Bryden was asking earlier
related to the case that you went into in detail, the person you charged seven
different times. Shortly after I made a speech in the Senate on this subject, I
was asked to participate in a number of radio talk shows.
I did one from my office in the East Block with a station in Calgary that
broadcast it around parts of Alberta. People phoned with their questions and I
answered. One woman phoned from another province and said that she had been
stalked for years and had had to obtain a complete identification change. She
was assisted in relocating because she had to get away. She changed her name,
her province, and everything else as a way of obtaining relief.
One possible reason why, in response to Senator Bryden's question, you could not
say what a perpetrator has done in the last year and half is because she may
have had a name and identity change. Would you agree with that?
Ms Cunningham: I do not believe that is what happened in that particular case.
However, yes, it does sometimes happen.
Senator Oliver: Did you know that more than 70 Canadians have done that?
Ms Cunningham: Yes. It is very difficult because often they must give up
everything, including their support. Someone who has already been victimized
for a number of months or years without support has nothing left, including the
children. It is not appropriate in most cases, except where you think that
someone can survive that change and the not knowing anyone else out in the
world. It is a cruel thing to do to anyone. You are right that in those
particular cases the harassment stops, but it is not a quick and easy solution.
Senator Oliver: There is another phrase on which I would like you to elaborate.
You said that what we have now, in the absence of something like Bill S-17 --
and I am not that wedded to it although it is perfect -- is like incarcerating
the victim. Could you elaborate on that for me?
Ms Cunningham: We work closely with the shelters. In cases like these, the
victim is usually so terrified that she must find refuge somewhere else,
especially if she has children. She must go into a shelter. In Calgary, you are
only allowed three weeks in a first-stage shelter. If it is a desperate case,
they may get into a second-stage shelter, which is for six months or one year.
They are not free to walk out and do the things that you and I are because they
do not know if he will be in the bushes or around the corner. Detective Harman
is absolutely right. In all the studies that I have read, these guys have high
IQs -- higher than the average criminal out there -- and they can manipulate
the system in incredible ways.
That is why the woman is incarcerated. She is not allowed to go out with the
children. The children change their schools, they cannot see their friends, and
they cannot go to public places because they do not know who will be there. It
is like an incarceration.
Personally, I cannot imagine living like that. If the choice is between that and
being physically hurt or killed, that is the life you choose, especially if you
have children. You will protect them any way you can.
Senator Bryden: With the incorrigible stalker you described, Mr. Harman, the
only thing you can do is put him away so he cannot do it again. He is a
psychopath. Literature says that psychopathic killers, for example, are
incorrigible. Some people may disagree, but these stalkers are smarter than
average and they will lie.
What percentage of the people who are arrested for stalking for the first time
ultimately fall into that category?You said that you cannot stop the person
doing this and the only thing you can do is lock him up.
Mr. Harman: I could give you rough numbers. Over the past three years, we have
investigated approximately 650 criminal harassment occurrences. Of those, I can
think of five that could fit into that category.
Senator Bryden: Does anyone else want to answer that? I have an additional
comment. Our system must always struggle with the fact that in dealing with
those five, we do not want to round up 15, 10 of whom should not be there. The
system will never be perfect, and somehow that occurs. We would love to get
those five, as you would. I am also sure that you do not want that sixth one to
get caught in the system.
Mr. Harman: I am sure that the system, with the 752 hearing, might catch two or
three of the five.
Senator Bryden: You are more apt not to get all of them?
Mr. Griffin: I go back to the impaired driving analogy. The extreme of those
hard-core impaired drivers was raised. As Detective Cunningham described, there
are others who may be a lower to medium risk. There must be some meaningful
consequences at some point. It must go beyond repetitive orders not to do it
any more or else.
The problem is that in a lot of our situations, that "or else" is a
long time coming. There must be some meaningful deterrent.
I would submit that we did that with impaired driving. After a second offence
you will go to jail and will lose your licence for one year. There are many of
us sitting in this room today who used to drive when we had had too much to
drink, but those types of meaningful consequences will deter that conduct.
Senator Bryden: I do not disagree that increased penalties have an effect to
When I was living another kind of life, I had the opportunity to do some
investigation into the issue of preventing the carnage on our roads caused by
drunken drivers and what other nations have done about that. The evidence
showed that it was not so much the severity of the penalty that made the
difference, but the virtual certainty of being caught. The education element
then kicked in, as did the social stigma. No one gets up now and goes to mass
on Sunday morning and brags about how he does not know how he got home last
night because he was so drunk that he does not remember driving. However, that
did occur in the past.
I am returning to Detective Cunningham's position of "being in their face,"
and making it clear that they will be caught. If we get enough of that
happening, you are absolutely correct that it will make a difference. However,
the penalty must fit the crime.
There must be the certainty that if you do this, you will be punished, and there
must be publicity and education. That is what will make a real difference.
Senator Oliver: Is the certainty of a stalker being caught a deterrent of any
kind? I would not have thought so.
Ms Cunningham: You are talking about a full range of stalkers here. I do not
know if you can pinpoint it and I do not know if the research has been done to
demonstrate that there are these many kinds of stalkers and the bill is
effective for every one of them. I do not believe you will accomplish that in
the short term because we do not have the data from which to draw those
research conclusions -- not yet.
In the majority of cases that fit that moderate risk, I think that short sharp
sentences will probably be more effective than merely increasing the sentence.
I agree that there is a message being sent with that. However, I do not believe
that the courts will send them to jail simply because we have increased the
There must be a combination of remedies. A short sharp sentence will divide
people with psychotic or antisocial behaviours from those who do not "get
it." The latter need to receive a short sharp sentence or they will not
stop. That will prevent some stalking and separate behavioural cases from those
individuals who are extremely dangerous and who will eventually kill their
Senator Nolin: In talking to some lawyers the other day, we were referred to a
study made for Justice Canada about three years ago. Perhaps you should obtain
a copy and read it. That way, if you have any comments, you can write to us.
The Chairman: That study is cited in the bibliography accompanying the report
that we have before us. Detective Harman and the Peel police also have it.
Senator Nolin: I will make sure that we have copies of it.
The Chairman: Thank you very much. This has been a useful presentation. I
recommend that we take a look at the rest of this document because there are
many interesting notes in it, including a questionnaire used in Huron County in
Ontario and the results of the inquests into the deaths of Arlene May and Randy
Iles. In addition, there is some interesting background information.
Thank you very much for an excellent presentation.