Proceedings of the Standing Senate Committee on
Legal and Constitutional Affairs

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 the bill.

Senator Lorna Milne (Chairman) in the chair.

[English]

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 country.

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 response.

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 records.

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 occurring.

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 out there.

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 women.

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 assessment.

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 guilty.

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 occurrence.

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 life.

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 areas.

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 tragically.

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 resulting convictions.

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 referencing.

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 secure.

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 way.

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 right.

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 offender.

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 it?

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 called.

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 years?

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 assessment.

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 unsuccessful.

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 opposite effect.

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 problem.

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 occurrences?

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 horrendous crime.

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 stalking crimes?

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 here.

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 deterrent?

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 the individual.

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 criminal harassment.

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 harassment.

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 violence.

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 attended.

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 domestic violence.

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 cycle.

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 which.

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 it.

Everything I have read indicates there will be an escalation unless there is an interruption.

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 some extent.

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 penalty.

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 victims.

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.

The committee adjourned.