Proceedings of the Standing Senate Committee on
Legal and
Constitutional Affairs
Issue 66 - Evidence
OTTAWA, Wednesday, April 21, 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 4:00 p.m. to give consideration to the bill.
Senator Lorna Milne (Chairman) in the Chair.
[English]
The Chairman: Honourable senators, the sponsor of this bill, Senator Oliver, has joined our committee today. Out witnesses are Ms Gillian Judkins, Research Assistant from CAVEAT, Ms Stephanie Whitehead, Director, Victims for Justice; and Mr. Steve Sullivan, Executive Director, Canadian Resource Centre for Victims of Crime.
Please proceed.
Ms Gillian Judkins, Research Assistant, CAVEAT: Honourable senators, thank you for inviting CAVEAT to appear before you today. Unfortunately, our president, Priscilla deVilliers, is unable to be here today. However, Mr. Steve Sullivan is here to help in answering any questions you may have.
Since CAVEAT was founded in 1992, we have been dedicated to preventing violence through a variety of measures. The primary focus has been preventive education, that is, learning to stop violence before it escalates.
CAVEAT receives numerous calls from victims of violent crimes, their families and their loved ones. In more recent years we have noticed a disproportional number of calls from victims of criminal harassment, more commonly known as "stalking." Many of these victims come to us because they have knowledge of CAVEAT. However, most are referred to us by police services or the Crown.
Due to the lack of understanding amongst professionals who deal with victims of crime and the haphazard handling of criminal harassment cases, we decided to play a role in bringing together the professionals who deal with these cases on a daily basis.
With that aim in mind we organized and held our first criminal harassment workshop. The event was extremely successful and drew people from across Ontario, including law enforcement personnel and individuals who deal with victims of violent crimes. The general consensus at the workshop was that there is a desperate need for more information about the issues.
Therefore, after the workshop, we determined it was necessary to hold a round table discussion. In June of 1998 CAVEAT, in partnership with the Halton Regional Police Service and community policing initiatives, hosted a criminal harassment round table to identify existing problems and develop specific recommendations to effectively address concerns about criminal harassment. A multi-disciplinary team of 30 experts from across Ontario contributed their unique perspective to the discussion which resulted in 83 practical recommendations.
We held our third event focusing on criminal harassment on October 25 and 26. This two-day workshop provided attendees with current knowledge and practical tools to prevent and reduce this escalating form of violence. The workshop focused on the impact of victimization, early identification, prevention and intervention strategies, threat assessment, and process to prosecution.
Criminal harassment is a difficult issue that is complicated further when studied closely. The examination of recent major investigations, such as the Bernardo case, the Arlene May and Randy Iles inquest, the Jonathon Yeo inquest, and the Vernon inquests reveal that stalking is more than a nuisance crime, and that it often escalates into assault or murder.
Criminal harassment is an issue that pervades many areas of life in different guises and is not segregated to one particular class, race, gender, creed or sexual orientation. Therefore, it affects people at all levels of society. Criminal harassment is specially sinister in that it is covert and can have a psychological impact on all aspects of the victim's life. It is so subtle and insidious that it causes victims to even doubt themselves at times, and misunderstand the immense gravity of the crime.
Although the Criminal Code provides a definition of the conduct of criminal harassment there is no single definition which can be used to adequately describe all the cases that are presented to victim and police services. Only in recent years has criminal harassment been taken more seriously by the professionals who deal with victims of crime. Now politicians are beginning to reflect this growing concern in initiatives such as the one taken by Senator Oliver in Bill S-17.
A survey by the Canadian Centre for Justice Statistics examined 7,462 reports of stalkings and found that 80 per cent of stalking victims were female, 53 per cent of whom had been intimate with their stalkers. In addition, 20 per cent of stalking victims are men, and 46 per cent of them know their stalker through a casual or work relationship. There is very little demographic research on stalking and only basic facts are known. Most victims are women and many of them know their stalkers intimately.
The most recent research we documented is American, and it looks at numerous factors involved with stalking cases; gender, race, ethnicity, age, and occupation. The information on page 11 of our submission clearly shows the diversity in the occupations of stalkers. This would appear to dispel myths that most stalkers are unemployed, uneducated, and merely have nothing better to do with their time. The age range of stalkers is from 18 to 51.
When studying the issue of criminal harassment, only a few researchers consider the prior history of the offender. In the same study that produced the above results, 52 per cent of stalkers were found to have a history of drug or alcohol abuse, 30 per cent had some form of mental illness, 49 per cent had previously shown violent physical behaviour or had been abusive, and 30 per cent had stalked another person at some time.
Although there may not be prior indicators to stalking behaviour for some offenders, according to Dr. Peter Collins, a forensic psychologist, 15 per cent of all people who are thought to be nuisance offenders, voyeurs, or exhibitionists go on to more violent forms of acting out.
Roy Hazelwood, an FBI criminal profiling pioneer agrees that the most violent offenders start by committing what police call "nuisance offences." Paul Bernardo did not begin as a murderer or a rapist, he began well before that with behaviours that many of us would not consider to be significant like window peeping and that type of crime. Bernardo began terrorizing Ontario communities years before many Canadians became aware of him as a murderer. Hundreds of young victims suffer today as a result of being stalked or raped by Bernardo. Their lives and that of thousands of other stalking victims were forever changed by the experience.
Many victims find their personality changes as a result of stalking. The incident may be a one-time occurrence, but the victim may live in fear for years. The impact on the lives of victims is tremendous.
The case of Paul Bernardo is one example of how serious stalking can become. His case shows a distinct pattern of escalation in the severity of the crimes. Bernardo began in 1998 and continued until 1993 when he was finally arrested for the murders of Kristen French and Leslie Mahaffy.
What is important to investigators and parole officers is the way Bernardo went about this. You can see how his pattern escalated and, for potential victims, the intervention should have occurred at an earlier stage.
Prior to the new criminal harassment provision, there was no specific section dealing with the issue of stalking. The only way the justice system could deal with these problems was to address them through existing legislation, laying charges such as uttering threats, intimidation, loitering or prowling at night, and issuing sureties to keep the peace. Unfortunately these charges were very specific and did not address the issue of stalking.
In 1993 section 264 of the Criminal Code on criminal harassment was ratified, thus allowing stalking to be recognized and making prosecution possible. Policy makers and advisers have not been aware of just how devastating criminal harassment is to victims, and uninformed opinion has been reflected in our legislation.
Although section 264 is a step towards improving the legislation, criminal harassment laws must be reviewed. The criteria laid out in section 264 can make it difficult to prosecute certain cases. In addition, due to the fact that intervention often escalates involvement between the victim and the offender, many victims are reluctant to press charges. Legislation should affirm that the victim's safety is paramount, while being a deterrent to offenders.
CAVEAT believes that criminal harassment is a multifaceted issue and should be addressed in a serious manner at all levels of the justice system. It is a unique problem that affects numerous areas of both public and private life. The effects, both long and short term, on children can be devastating. In addition, productivity in the workplace is greatly affected and long-term health costs can be enormous.
When our organization was looking for professionals to help us deal with victims of criminal harassment, we were astounded to find they did not fully comprehend the issue. We believe that this lack of understanding has been reflected in current criminal harassment legislation. There must be clear recognition that criminally harassing another person is a serious crime and, although apparently innocuous, it has serious consequences. The Honourable Donald Oliver has proposed Bill S-17 which would amend the Criminal Code with respect to criminal harassment and other related offences. Addressing for the first time the serious nature of the crime.
The most significant change suggested in Bill S-17 would be that it would increase penalties for offenders. The proposed legislation increases maximum penalties on summary convictions from six months imprisonment or a $2,000 fine, or both, to 18 months imprisonment with no fine option. On indictment, the maximum sentence would be increased to 10 years as opposed to the current five-year sentence.
Recently, the government amended first degree murder provisions with the passage of Bill C-27. Now any murder is automatically first degree when it is committed while the offender is committing or attempting to commit an offence under section 264. The government also made it clear that, when a court is imposing a sentence on a person convicted of stalking while under a peace bond or restraining order, it shall treat that as an aggravating factor.
CAVEAT believes that, in the name of intervention, further amendment must be made with regards to criminal harassment to ensure mandatory minimum sentences. Subsection 264(3), subsections 372(2) and (3), and subsection 423(1) should be amended to provide a mandatory minimum sentence of four months incarceration when the offence was committed in violation of a no contact order. The same subsections should also be amended to provide a mandatory minimum two-year sentence for subsequent offences. Mandatory minimum sentences would ensure that courts have adequate measures to intervene at an early stage in order to prevent escalation.
Criminal harassment is a unique crime. It demands an equally unique solution such as long-term supervision of offenders to ensure that they do not reoffend. Although increasing penalties serves as a reminder to victims, offenders, and the community of the severity of the crime, a wider view must be taken to ensure that perpetrators of this crime will be stopped prior to escalation.
We applaud Senator Oliver for his stand and for bringing this issue to the forefront. We believe this is an important first step in finding a solution to the problem. In the words of Tammy Fee, a victim of criminal harassment so poignantly stated:
I can only hope and pray, and I have sounded every trumpet that I can, and I have written every letter that I can, and I just hope and pray that I don't end up dead, or my children, or someone else. And don't say I didn't warn you.
Criminal harassment is a multi-faceted issue that has been misunderstood by the professionals, the justice system and the victims who did not realize the severity of the crime. Current legislation must be reviewed and amended to ensure that it reflects the serious nature of this crime.
The Chairman: Thank you for a well-presented report. Would you like to accept questions now or will Ms Whitehead speak first?
Ms Stephanie Whitehead, Director, Victims for Justice Coalition: Honourable senators, I am happy to be here today. I would commend Senator Oliver for bringing this issue to the forefront. It has been a long time coming.
I appear here today on behalf of the Victims for Justice Coalition of Windsor-Essex County. The organization was founded in 1992 after the stalking and brutal murder of Pamela Stewin by her estranged, common-law husband, Richard Colley.
My inception into this group was in 1993 when I was asked to campaign for a stalker's law in Canada. After the legislation was enacted, further follow up was done through tracking court dockets. I continued to study cases of stalking in my community and provide resources to victims. We do have a stalkers law in Canada but it is just a start. We have a long way to go.
I would like to address the serious issue of stalking where it relates to domestic abuse, murder and workplace harassment. Stalking is commonly referred to by law authorities as "criminal harassment". This was confirmed law on August 1, 1993. It was enacted primarily to strengthen Criminal Code provisions to deal with family violence and violence against women in general. This new legislation was thought to provide better protection for victims of stalking, otherwise termed as "criminal harassment."
The vast majority of criminal harassment cases involve male stalkers, although I am not so naive as to say that it does not happen to men. Statistics indicate that a higher number of women are stalked. According to police statistics, 70 per cent of the cases involve a former spouse, boyfriend, et cetera. Criminal harassment is definitely not a rare occurrence in Canada. There were more than 4,000 stalking cases in 1995. Many victims may minimize the situation they find themselves in, not realizing the full danger ahead of them.
Victims often isolate themselves from family and friends, fearing for the family's safety. It can disrupt a person's life and their workplace. In a sense, a victims are forced to alter their life-styles or to move for their safety. Individuals who find themselves caught in this situation begin to feel helpless.
Many victims have described stalking as being "a psychological rape." The person has power and control over the victim. The victim wants his or her life back. The victim is in an emotional prison. Many victims are forever robbed of their rights to freedom and security. Even though the stalker may have committed suicide or left the victim's life, the victim will never feel safe again -- never.
Stalking victims are frequently advised to get a restraining order in cases of domestic violence when a former spouse, common-law spouse, or boyfriend refuses to accept that the relationship is over. The ending of the relationship instils fear through the experience of the past or present relationship. A restraining order is a temporary measure until a case goes to trial. It gives a false sense of security to the victim.
Pamela attempted to get a restraining order, and the activity of stalking escalated. Her death ensued shortly after that. Juanita Fields was successful in obtaining a restraining order. Her death resulted, as well. The violence escalated.
According to a renowned threat expert, Gavin De Becker:
... restraining orders are most effective on the reasonable person who has a limited emotional investment. In other words, they work best on the person least likely to be violent anyway. The same court order used on an estranged husband asks him to abandon, at the stroke of a judge's signature, the central features of his life: his intimate relationship, his control and ownership of another human being, his identity as a powerful man, his identity as a husband, and on and on. This distinction has largely been ignored by the criminal justice system.
Leaving a matrimonial home where violence was a precursor does not necessarily preclude that woman from violence. The mere hope of escaping this emotional and physical imprisonment is like a ray of sunshine at the end of the tunnel. However, once a woman is courageous enough to get that far, her safety and security are frequently compromised by an enraged spouse who subscribes to the philosophy that if he cannot have her, nobody will.
According to the homicide statistics of 1995, one-quarter of women killed by their spouse were separated or divorced at the time. The Klassen homicide case is a prime example of this mentality and is a parallel to the Stewin case.
When Susan Klassen tried to move on with her life, Ralph Klassen strangled his ex-wife with his bare hands, spraining both of his thumbs in the process. In the Stewin case, Richard Colley stabbed Pamela 10 times and did not stop until he broke the knife inside her. Threat expert Gavin De Becker points out that 75 per cent of spousal homicides happen after the woman leaves. It is estrangement, not argument, that begets the worst violence.
When a woman's last attempt for a life of freedom and security from cruel and unusual punishment is quashed needlessly, are we to believe that her new found independence provoked her own death?
Women in the workplace often encounter harassment or unwanted romantic advances. Many women are reluctant to come forth and report this behaviour initially because of embarrassment, lack of support from management or co-workers, fear of reprisal, or losing the job. Data derived from the Uniform Crime Reporting Survey reveal that the most reluctant to pursue the laying of charges were victims involved in workplace relationships with their stalkers. Those people represent 32 per cent of victims.
The murder of Theresa Vince by her obsessive boss, Russell Davis, at the Chatham Sears store clearly reflects this cruel reality. Mrs. Vince was literally left to deal with this unwanted harassment herself. Sears upper management was aware of the situation, yet were oblivious to the fate awaiting Mrs. Vince. Her story should be an echo to this Senate committee and validates the need for Bill S-17 identifying criminal harassment as a dangerous personal offence.
The moral of this story is that, if we continue to turn a blind eye to any type of harassment, it can escalate and death can ensue. It is not enough to have a stalker's law in place. The legislation needs to have more teeth, be enforced, and punishment needs to be swift and severe enough to act as a deterrent. I think Bill S-17 is a start in that direction.
Despite the fact that the stalker's law is a hybrid offence, meaning it can be prosecuted by summary conviction or indictable offence, very few are prosecuted as indictable offences.
Another disturbing fact is that the majority of cases are prosecuted by summary conviction, which means probation or minimal jail time. Justice Canada's study found that 71 per cent of cases in their sample are prosecuted by way of summary conviction.
A study of 601 cases handled by police, the Crown and the courts between 1993 and 1996 showed that more than half were dropped before they reached trial -- which I find alarming -- usually after the accused agreed to a peace bond. Of the 27 per cent who were convicted, most were put on probation, which leaves them able to continue on with this cycle. Only one-quarter went to jail, usually for four months or less.
I would like to highlight some of the findings from my qualitative study that I administered to police services all across Ontario.
I looked at discretionary powers of police in respect to criminal harassment. The exercise of discretion is definitely a critical decision. Victims need to be consulted about the significant developments in such cases. The victim's safety and mental state are the key issues revolving around criminal harassment. The police are required to process all the information provided from the police reports and determine the best way to proceed with the case.
Discretion is according to the rules of reason and justice, not according to private opinion. Criminal harassment is the hybrid offence and as such can be litigated through the courts by either summary conviction or indictable offence. Bearing that factor in mind, discretion plays a huge role in determining to what part of section 264 of the Criminal Code the pattern conduct applies.
Another common thread from this study is that many cases are resolved outside the court. Police have used discretion, taking into account all the circumstances, as well as the wishes of the victim. They do not always proceed with charges. In many instances the suspect receives a caution.
I also looked at criminal harassment in respect to domestic violence, a recurring and constant theme in the study. The police services communicated through their survey responses that in cases of domestic violence and criminal harassment, no discretion was used. Instead, there is a must-charge policy as per the Solicitor General's directive in response to domestic violence. This was reflected in the comments made by the respondents. The following excerpts are a sample of typical comments from the study:
This particular type of charge should be "zero tolerance" as per Domestic Intervention Policy...
When dealing with domestic violence which some of these charges involve, Police have been instructed that charges will be laid with no discretion...
The same responsibility as per "Solicitor General (Ontario) Policy" on Domestic Violence charges may be needed to ensure that the appropriate response will be taken...
If a victim went to the police and said that this happened this many times, there are variable responses. Some go to a different part of the code in order to interpret it. I am finding that it is not consistent.
I would like to highlight some of the recommendations that came out of the study. There needs to be heightened public awareness for potential victims about criminal harassment. The entire country needs to be more aware of the seriousness and the devastating effects this can have on one's life. I think Bill S-17 is bringing that to the forefront. Police, parole officers, correctional officers, judges and Crown attorneys need sensitivity training and to be exposed to more victimology courses and training to appreciate the impact that stalking has on an individual's life, as well as standardized policies to ensure that a victim's safety is protected. The protocol and response to criminal harassment charges need to be mandated by the Solicitor General's office, as it is in the domestic violence intervention policy to ensure consistency and enforcement by police agencies. Each police unit needs to be equipped with a threat management unit in order to assess the situation involving a stalker within a certain degree of accuracy. Some units do have this. Officers should attend conferences yearly to remain competent and current in this field. They should have college entrance requirements or specialty program entrance requirements. There needs to be more defined sentencing guidelines to ensure more consistency in sentencing. At present, judges have too much of a window of opportunity and as such go to the lower end of the spectrum at the time of sentencing. This does not accurately reflect the gravity of the stalking offence.
The safety of victims is always at risk when the accused is not in custody. Perhaps bail hearings in respect to this offence should be conducted by judges instead of justices of the peace. Release should only be granted when strict conditions are undertaken. If a stalker breaches conditions, there should be an automatic jail term.
How many times have we seen these people breach conditions, get sent back to jail and then receive a summary conviction? It goes on and on. What does this tell the victim? Who is at risk here? We are playing Russian roulette with someone's life.
We need to bring home that message. Senator Oliver's bill is a good start in making them realize that it is serious.
There needs to be active enforcement by police and Crown attorneys and appropriate charges must be laid. There should be opposition to release on bail without strict enforceable conditions, as well as requests for time in custody, not probation on suspended sentences. There should be mandatory jail sentences for all convicted offenders. Stricter release conditions should be imposed by the bail courts. Some consideration may be given to the notification of victims pending the release of the perpetrator.
Most times victims only hear at the last minute that the offender has been released, which leaves them full of fear. You cannot blame them for being afraid after what they have endured.
A central repository to track and monitor the activities of stalkers should be established. A central database with all the information may assist in profiling a repeat offender.
We must get rid of the word "repeatedly," which seems to be a problem with different police services.
There must be a follow-through on the court process to include specific court protocol for these offences.
Third-party complaints should be included. Let me give you an example of someone who goes to a day-care centre and tries to grab a child and they are seen by a worker at the centre. Although the worker is not the victim, the worker may feel that the behaviour exhibited is criminal harassment and he or she fears for the safety of the children.
The powers of search should be increased. This refers to pro-life groups who go after abortion clinics or the interception of telephone conversations when an identified group is preparing to criminally harass another group.
Another idea is to remove the requirement to prove that the accused knew that their conduct is harassing. I think that is a reference to when people say that they are mentally disturbed. Even though they are disturbed, it does not mean that it is not criminal harassment. That behaviour could go on for years and years, which does not make it any less of an offence.
It could be reworded in such a way as to avoid any ambiguity as to what is criminal harassment.
Victims need to understand that this offence must be reported from the very start, not six months after the incident. The problem is that many victims are not aware of this charge. I often use the analogy of the passing of the GST in this regard. If victims are not aware of this charge, then how can they help themselves? The onus is on the victim to prepare documentation of all these incidents. If they do not know what is expected of them, then this cycle will continue unless resources are allocated to assist.
In regard to the subject of minimum sentencing and mandatory jail time for repeat offenders, this will depend on the interpretation of the courts.
That would complete my presentation. I should be pleased to answer any questions you may have.
Senator Oliver: People who have never been stalked or have never put their mind to the issue often say that stalking is not all that serious. What is wrong if a man is following his former wife up the road? Or what happens if he looks in the window at his former wife? Or what is wrong with his leaving a note on her car saying, "I will see you tomorrow"? What is wrong with him sending flowers? What is wrong with leaving a dead animal in front of her house?
Those events do not provide sufficient cause for sending someone to jail. Therefore, my question is what can and should be done to help the victims know that they should be documenting each and every one of these cases as they occur? What else should we be doing or how might we amend this bill to let people know that these acts add up to form the pattern of stalking?
Ms Judkins: As far as we are concerned, we believe education and awareness definitely need to be increased around this issue. That is what we have tried to do by bringing professionals together.
Perhaps police officers should be aware that sending flowers is something harassing if the recipient fears the sender. If we set minimum mandatory sentences in relation to criminal harassment, we could be able to curb some of these problems. Judges would then have something to work with instead of, as Ms Whitehead said, being presented with an open window for interpretation.
The proposed legislation needs to send the message that criminally harassing another person is wrong. It needs to be tougher than it already is. This will have an effect on the rest of society. As offenders are brought to court and justice is seen to be done, other victims will realize that what has happened to them also constitutes criminal harassment.
Senator Oliver: The difficulty is that some of the initial acts of the wrongdoer do not appear to be all that significant. However, events increase in significance with their occurrence. Where do we draw this line before the law should intervene?
Ms Judkins: As soon as a victim comes to the police with a concern, there should be some measures in place so that the police will know what to do to help this victim.
As far as saying, "This man loves you and he is trying to get you back into his life," that is not good enough. A woman is clearly in fear if she comes to the police. It is likely that numerous incidents led up to the reported incident.
Education and awareness is the way to go from our standpoint. I believe that once we send a message to offenders and the community that these acts will not be tolerated, events will start to change.
Ms Whitehead: A situation may appear innocuous at the time. However, a woman living in that situation is just trying to survive. She may not see the escalating events as controlling or dangerous, while someone with more perspective may have that ability.
I agree that the educational component of this issue is important. In our community, we have conducted a criminal harassment workshop. Crown attorneys have made presentations to people in our shelters.
The subject of custody can also be clouded if a victim did not report each incident or if the victim did not lay a charge prior to a marital breakdown. If a victim lays a charge once the custody battle begins, it raises suspicions in regard to credibility.
Senator Fraser: This is a horrible subject to grapple with, as you have both rightly observed. There is a tendency to say that we will do what we can, even if that may or may not be appropriate.
I am struck by what appears to be the fact, as borne out by this study of 601 cases between 1993 and 1996, that an enormous number of stalking cases do not even get to trial. More than 50 per cent of all reported cases do not get to trial. Of the cases that did go to trial in this study, 27 per cent of the total ended with convictions. Of those people who were convicted, only a quarter actually went to jail.
What interests me most is the more than 50 per cent who did not even make it to trial. Why is that? Is that because the police could not be bothered? Is that because the victim, who is usually female, refused to continue with the complaint? What goes wrong in there?
Ms Whitehead: From my discussions with justices of the peace, I have learned that a victim often does not know what type of documentation is needed. Fluency in English or French is often a problem. A victim is often afraid to testify in court and is then cast as an uncooperative witness.
Senator Fraser: You discuss the parallel with domestic violence cases where at least some jurisdictions proceed anyway, whether or not the woman will testify.
Ms Whitehead: The domestic violence officer in our area videotapes a crime scene. The sexual assault domestic violence unit will take pictures and make reports. With this backup, the Crown has had a comparatively high success rate.
Senator Fraser: These officers can then testify, even if the victim is unwilling.
Ms Whitehead: If the victim is a child, they can disregard what she has to say and produce the videotape.
Senator Fraser: I appreciate the difficulty posed if one does not have a record of the case. Nonetheless, is there any jurisdiction anywhere that has a must-charge or a must-proceed policy in regard to criminal harassment?
Ms Whitehead: It has been my experience that the police services are better in areas of higher density. They have had more experience with it and can appreciate the severity and cumulative effect of it. The regional police of Halton and Peel do very good work. They have sent me a copy of their policies.
Senator Fraser: Could you forward copies of those policies to us?
Ms Whitehead: One part of the policy is confidential, but I will share the other with you.
In one situation, a woman called me to complain about a situation which, in my opinion, should have resulted in a criminal charge. She said that the police had told her that something had to happen to her before they could do anything. I knew that was not true. I spoke to the Windsor police chief and questioned what was happening. I provided him with a copy of the policy I had received from the Halton and Peel police forces, and Windsor police changed their policy.
In some of the outlying areas, they do not have the experience to deal with these situations. In some of those areas, women are told just to go home, that things will get better.
Senator Fraser: If you had to choose between increasing maximum sentences or imposing mandatory minimum sentences, which way would you go?
Ms Whitehead: I would choose mandatory minimum sentences because, as I said before, the judges go to the lower end of the spectrum.
Ms Judkins: Mandatory minimum sentences are definitely the way to go. It gives judges a measure to deal with an individual and it sends the message that this crime will not be tolerated.
Mr. Steve Sullivan, Canadian Resources Centre for Victims of Crime: I concur with my colleagues. Both would send a message, but I believe that the minimum mandatory sentence would send a stronger message that this behaviour will not be tolerated and that a minimum sentence will be imposed for this conduct.
Senator Pearson: I am struck by the fact that the people who seem to respond most to the warnings are the ones who need least to do so. That does not surprise me because, clearly, stalking is pathological behaviour.
Given the fact that it is pathological, I am not sure how well deterrence works. What statistics do you have about the nature of these people and the treatment that is available?
Ms Whitehead: The average person will not be violent. I do not want to paint all men with the same brush.
Senator Pearson: No, I have said that stalking is pathological behaviour.
Ms Whitehead: I cannot answer that. I am not a psychologist. I heard from a psychologist that this happened even to her.
Senator Pearson: I am looking at the practical implementation. We impose a sentence as a deterrent. There are two aspects to this. First, it is a statement to society, and that is very clear. The second aspect is deterrence. What statistics do you have with regard to people who are sent to prison and then reoffend?
Ms Whitehead: There is a lot of reoffending.
Senator Pearson: Therefore, we have to go deeper to disengage these people from their behaviour.
Ms Whitehead: It must come from all levels. The judge, the police, and the community must all send a message. I like the Duluth project because it does not stop with the court. The whole community is involved.
The Chairman: Ms Whitehead, if you have some information on that project, perhaps you could send it to the committee. That would be valuable to us in our deliberations and might help answer some of Senator Pearson's concerns about how to alter this kind of behaviour.
Ms Whitehead: I can do that.
Ms Judkins: I would like to address the question about the nature of this. We deal closely with the OPP behavioural scientists team. We have found that we can begin in how we train police officers. When they go into a situation, they need to know what questions to ask to assess the threat situation. For example, they need to know the nature of the threat, the specific harm or the act, and where, when, by whom and how it will be carried out. They should ask whether the offender seems to be trying to have more and more contact with the victim or is trying to move away.
As I stated before, Paul Bernardo did not start out as a murderer. Had his earlier behaviour of stalking, window peeping and raping been dealt with, it may not have reached the point of him murdering three young women.
Senator Pearson: That does not quite answer my question. I know that some members of your groups like the victim to confront the perpetrator in order for the perpetrator to understand the damage they have done. Do you know of sentencings where the victim and the perpetrator have met face to face?
Ms Judkins: We personally do not deal with victim mediation. That is quite popular in the United States. In cases such as criminal harassment, this can be a danger for the victim, whose life is at risk. When there has been any violence, offender mediation is generally not recommended.
Senator Pearson: I was not thinking of mediation. I was thinking about the sentencing stage. I was thinking about sentencing circles in aboriginal community, for example.
Ms Judkins: Mediation is based on the healing circle.
Senator Pearson: Sentencing and healing are slightly different. The real challenge is to alter the behaviour so that these individuals do not go on to reoffend.
Ms Whitehead: This goes back to what Ms Judkins said about the threat management units assessing the situation. It is important to have a professional there for that purpose.
Ms Judkins: We need to send the message out before people offend. We need to teach young children in the schools about appropriate behaviour. We need to teach teachers how to spot a possible future offender. There is often a pattern that begins as early as kindergarten.
Senator Beaudoin: Mr. Sullivan spoke about the minimum sentence. We had a similar debate with my colleague, Senator Oliver. We must be prudent. However, both of you have the same opinion. I believe that you were speaking about increasing the minimum sentence. In other words, if we want the law to be taken seriously, we have to do that sometimes.
Senator Oliver has said -- and, you agree with him -- that this would be a case where it would be fine to raise the minimum. However, that is not always the case. I remember, for example, the Young Offenders Act and the huge debate that we had on it. However, in this particular case, you agree that it is a good suggestion.
Mr. Sullivan: The caveat is made with regard to the mandatory minimum sentence. The other important part of that is when the offence takes place in violation of a no-contact order. Some offenders are told, through either a restraining order or a peace bond, "Do not contact this person." When the stalking or the criminal harassment behaviour occurs, then the minimum mandatory sentence takes place. There are two elements to it, which reinforce the need for the minimum sentence.
Senator Beaudoin: Are you satisfied with the proposed legislation as it is drafted?
Mr. Sullivan: Yes.
Senator Nolin: You spoke about a minimum sentence. Let us say that we will stipulate one now in the bill. Senator Oliver introduced an amendment, but I beg to differ with my colleagues. I think it will be worse if we do not look after the definition of section 264 of the Criminal Code. The judges will look at that clause carefully. The loopholes in section 264 are so big that no one will be convicted of this infraction. We should start with what we are doing now, namely, increase the level of the importance of those infractions and have a second kick at the can and look at the definition of section 264.
Senator Beaudoin: You would wait?
Senator Nolin: Yes, as long as you agree that we would increase the sentence to what we have in Bill S-17. Keep in mind that we will have to revisit the old section 264 of the Criminal Code. The definition is too broad. There are some words in there that cause problems, such as "reasonable," "knowing" and "repeatedly." That is why I do not think the minimum sentence would help now.
Senator Beaudoin: Wait and see.
Senator Nolin: I am not an expert in that. You are much more an expert than I am in that field.
Ms Whitehead: When I was trying to get this law passed, I did research at the law library at the University of Windsor and looked at all the laws, specifically the California law. To me, that law had the most stringent wording and it marked the direction in which I was heading. They had a period of 10 years with an indictable offence.
Senator Nolin: Was that the minimum?
Ms Whitehead: Yes.
Senator Nolin: What was the definition of the infraction?
Ms Whitehead: I can give you a copy of that.
Senator Nolin: The trial judge will look at the facts and decide upon, for example, the intent. However, when a crime is complex, you have a big problem. For example, if you commit offence A and you are caught, the penalty is a minimum of 10 years. That is very easy to adjudicate. However, we are now dealing with social behaviour. We are talking about an attitude that can be isolated and can be very normal, but when a repeat offence is involved, it is different. We are now using the word "repeat." If you have all that, you can come up with a definition like the one we have now. However, the real job will be to look at the infraction itself.
Do you follow my question, even if my English is not perfect?
Mr. Sullivan: We support the bill. However, there is more to be done. You refer to the definitions. That can be addressed, as well as the issue of the mandatory minimum sentence. If this bill were passed in its present form tomorrow we would be happy, but there is more work to be done.
Senator Nolin: There are the words "lawful authority" and "without lawful authority."
Ms Judkins: This is something that we have run into in our research at CAVEAT. There is no single definition that can describe "criminal harassment." It is so insidious that it is hard to find out the concrete definition. Our definition is "any unwanted, repetitive negative behaviour from one person towards another, such as repeatedly following, calling, initiating unwanted communication or continually monitoring another's whereabouts." That does not cut it.
Senator Nolin: If you have the definition that is used in California, we would be pleased to look at it. It can involve the normal behaviour of normal human beings in a specific environment but if it is done repeatedly, that can be a problem.
Senator Oliver: Yes, for example, "watching the dwelling house."
Senator Nolin: Many people do that every Sunday.
The Chairman: These things are included in the definitions in the present Criminal Code, but the term is repeated, "or besetting or watching the dwelling house."
Senator Nolin: I do not know how we can avoid the word "repeated."
Ms Whitehead: If you leave it open to interpretation by a judge, it will be thrown out. I agree with what you are saying. I can give you a copy of the recommendations that came from the police. They address that in their responses to the recommendation and how they would like to see it tightened up. I will get you a copy of it.
The Chairman: We would appreciate that. If you could get it to us as soon as possible, we will circulate it among the members of the committee.
Senator Nolin: Have they been invited to appear before us?
The Chairman: Not yet, but we certainly can ask them.
Ms Whitehead: This will not happen overnight. It is a progressive thing. We would be happy with the bill the way he drafted it, but a little at a time. Perhaps you will bring that forth now and then you can do some more work on it later.
Senator Nolin: We can do a great deal regarding the administration of justice, but that is not our jurisdiction. That comes under provincial jurisdiction.
Senator Fraser: Coming back to the question of the minimum sentence, all of my colleagues are more experienced than I am, and so are you. However, if we are to think about minimum sentencing, do you have any data or any experience on the dynamic that is set in play when there is a minimum sentence provision in the law?
We have several sets of problems here. Judges do not set high sentences now, even with the maximum sentences that are stated. I do not know that this bill will succeed in changing that.
Another problem that is larger statistically is the proportion of cases that do not come to trial. When you have a minimum sentence, do we know whether that makes cases even less likely to come to trial? Do the police and the prosecution tend to be -- whether consciously or unconsciously -- more reluctant to bring cases to trial? Do we know?
Ms Judkins: I am not aware of any jurisdiction that has a minimum sentence and the results of that.
Senator Fraser: But there are other fields in which minimum sentences exist. That is why I wanted to know about that area.
Ms Judkins: I do not know.
Mr. Sullivan: In Bill C-68, the gun control bill, for example, the government introduced minimum sentences for offences involving a firearm. One could argue that the end result would be more plea bargaining, for example, to another offence that did not involve a mandatory minimum sentence.
However, that would send a message to police and to Crown attorneys that Parliament and government take this issue seriously. It may happen because we are taking domestic violence more seriously. It may result in mandatory charges for stalking behaviour. There may be some backlash but there may also be some positive side effects in sending the message not only to offenders but to people working in the system that this behaviour must be treated seriously from now on. There are built-in advantages and disadvantages.
Senator Fraser: That is contingent upon us going that route, and I am not at all sure that the committee is prepared to do that. Thank you for helping us in the process of understanding.
Senator Robichaud: Senator Fraser was saying that the police forces would be less likely to press charges. What about the trial itself and the trial judge? Do you have any evidence that would lead us to believe that if we strengthen the sentence, fewer convictions would result? The charge would be harder to prove because the sentence is higher, but do you still see a positive side to having a higher minimum sentence?
Mr. Sullivan: I do not know if there are any statistics in that regard. If the sentence was a minimum of 30 years, for example, I could see a judge refusing to convict a person because the sentence is out of proportion to the behaviour. That will not happen if there is a reasonable sentence. Also, judges should not be determining guilt or innocence based on the sentence.
Senator Robichaud: I agree with you, but it does happen.
Mr. Sullivan: If the Department of Justice is appearing before you, it would be interesting to see if they have any statistics showing the rate of conviction under the gun control provisions. I am not aware of any.
Senator Bryden: In my experience, you must be very careful when taking away the discretion of the judge. If a judge is not allowed to exercise his or her discretion in imposing a sentence, particularly in either a minimum or a maximum case, they will exercise their discretion at another level, which is normally in convicting or not convicting.
A judge's determination involves not only how to apply the law but also, perhaps, whether the jail is full. In some jurisdictions, sentences are to be served when the jail has space enough to accept another prisoner. Some sentences are served on weekends. I do not know if such a sentence would help the victim at all.
In my reading and in my experience, the likelihood of being caught when one breaks the law is, in most instances, a greater deterrent to offences than is the harshness of the possible penalties. We are trying to prevent these behaviours from happening.
Drinking and driving laws are an example. Certain jurisdictions have decided to consistently apply the law every time to every perpetrator. This began in some of the Scandinavian countries. They had tried long jail sentences and huge fines on second and third convictions. Then enforcement reached a point where every citizen in the country was virtually assured of being stopped on the way home from a party. Indeed, police would announce their intention to monitor a certain party at a certain location and to charge any driver caught with excessive blood alcohol limits.
Some of that attitude now prevails in Canada and the amount of drinking and driving is dramatically lower, in part because of the consistency of the enforcement effort. It is also due in part to such behaviour no longer being part of our culture. I no longer buy a pint, pick up my buddy and cruise the back roads of New Brunswick on a Saturday night. I was not always a senator or a lawyer.
This change does not just apply just to me. Such behaviour is no longer the thing to do among most young people.
I have a question. Are there support groups or programs, for want of a better term, to educate the public about what constitutes harassment and how to handle it if you are the victim? If there are such programs, how available are they?
Ms Whitehead: Our organization enlightens people and those people enlighten other people. Many victims' groups try to educate people. Unfortunately, many people are still not aware of the new law. Groups like ours must go out and spread the word. Like drinking and driving, we need a system with a mandate to lay charges in all circumstances that meet the definition. That is the only way to get around the lack of enforcement.
Senator Bryden: The problem here is that we do not have an easily defined limit; we have no machine into which the offender must blow a breath sample.
Ms Judkins: On the drinking and driving issue, the victims' group MADD (Mothers Against Drunk Drivers) consistently went into schools and other locations to educate the community. That effort must start at the grassroots level. We are doing that, as are other victims' groups. It must begin early on so people can recognize harassment and know how to deal with it.
As far as support groups and education programs that actually deal with criminal harassment, there are groups such as CAVEAT. However, we are not speaking to the people who need to hear this message. There is one group for offenders in London, Ontario, called Changing Ways. They deal with men who batter women. Groups such as those not do often deal with the issue of criminal harassment and defining what they have done wrong. Many people are court-sentenced to attend these meetings. Otherwise, they find themselves back in jail.
We need to do that with criminal harassment. People accused of stalking should be forced to attend a group or a class to learn what harassment is and to learn the consequences of continuing their harassing behaviour.
Senator Bryden: I have another comment that does not relate particularly to what Senator Oliver has here in this bill. Since being involved with government at both the provincial and federal levels, I have seen in society a tendency to want to solve every social problem with new legislation. If the law is made absolutely clear, everyone would obey it or face the punishment.
Some people believe that this acts as a magic bullet that does not work. That is why I was opposed to a separate sentence of capital punishment for the murder of police officers because police officers are at risk. It did not particularly relate to the issue of someone being executed for killing a police officer. The real issue was that the penalty would then become, unfortunately, psychological protection for the officers, and the officers may not do the training and follow the procedures that would protect them from being shot or killed. The assumption would be that people would not kill police officers for fear of losing their own lives by way of the death penalty. People who commit crimes such as that believe they will not be caught. That is the biggest problem.
Legislation can only go so far, particularly in a complicated social and personal situation such as this. The answer lies in educating local communities and the police establishment. The answer lies in giving police the ability to lay a charge without the victim actually having to give evidence. That is probably not a bad idea. There are things that the law can do, but the point is that the law can only do so much.
Senator Oliver: All three of the witnesses said that Bill S-17 heightens awareness, and they were very pleased with that.
Senator Fraser: Society's greatest concern must be with the 15 per cent of stalkers who go on to commit violent acts. Let us assume a stalker is charged. Once a stalker is in the hands of the authorities, can a psychiatric assessment make a useful estimate of whether this stalker is one of the 15 per cent or one of the 85 per cent?
Ms Judkins: In dealing with victims, we found that it is not always possible to determine whether someone will reoffend. Generally, in cases where the stalker has had an intimate relationship with the victim, they are more likely to reoffend than when it is a stranger stalking the victim.
Senator Fraser: They would reoffend on a higher level, not just go back and make another phone call.
Ms Judkins: Yes.
Senator Fraser: However distressing, another phone call would not endanger life.
Ms Judkins: In all the cases we have dealt with, when the victims call, even in the early stages of stalking, it always escalates.
Senator Oliver: I was interested in your statistics on page 11. They show that 17 per cent of stalkers have a professional occupation. They are lawyers, doctors, architects and engineers. That is the highest category. The next highest category is executive managerial at 10 per cent. The next category is clerical, precision crafts, student, technical, retired and so on. When you saw those statistics for the first time, what did they tell you?
Ms Judkins: It was not a surprise to us. We know this through the victims who call us every day. It goes to show that this affects everyone -- every class, every race and every gender.
Senator Oliver: Your experience has been that these statistics are borne out over and over again.
Ms Judkins: Yes, they have been in every situation with which we have dealt.
The Chairman: If there are no further questions, I wish to thank our witnesses for appearing today.
The committee adjourned.