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PEOPLE WHO STALK
PEOPLE
Introduction
Stalking is one of those
activities that conjures up a host of brutal images. When a cat stalks its prey, it likes to play with the victim for a
while, tormenting it for an agonizing few minutes before finally killing
it. Likewise, the human stalker plunges
his victim into a world of fear and terror by repeatedly following and
attempting to contact the victim despite pleas to stay away. The obsessive efforts of the stalker to
control and intimidate often escalate into violence, including the death of the
victim.
Stalking activities were
first thrust into the public limelight during the 1980's when a series of
well-known celebrities suddenly found themselves the target of one or more
adoring, but obsessed fans. Singer Anne
Murray was pursued relentlessly by a Saskatchewan farmer despite several court
orders directing him to stop.[1] David Letterman was stalked by a woman who, claiming to be his
wife, went to his residence several times, and, on one occasion, broke in and
stole his car.[2] In 1989, Rebecca Schaeffer, a star on the television show
"My Sister Sam" was murdered at her Los Angeles apartment by an
obsessed fan who had pursued her for two years.[3] More recently, an obsessed fan of pop singer Madonna entered her
home at Los Angeles despite protective court orders forbidding him from doing
so. In April, 1995 Robert Dewey Hoskins
said he was either going to "marry her, or kill her", by
"slitting her throat from ear to ear." Two months later, he entered her house carrying a wooden heart
that read "Love to my wife Madonna," and kept security personnel at
bay for several minutes as he ran around the property, swam in the pool, and
insisted that the guards "leave my property." After a scuffle, he was shot by one of the
guards and charged with stalking the controversial singer despite her absence
from the house at the time of the incident.
In most stalking cases,
however, the victim is not a celebrity or even a public figure. A 1993 U.S. Task Force on Stalking reported
that most victims are former lovers, former spouses or the current spouse of
the perpetrator.[4] Another recent U.S. study has chillingly suggested that 200,000
people in the United States are stalking someone.[5] Stalking, as a form of human behavior, exists in all walks of
life; it cuts all age and gender barriers, and knows no class distinctions.
Nor is the problem of
stalking confined to the United States:
In 1991, an Ontario man stalked his estranged wife, Patricia Allen, over
a period of several months, then shot her to death through the chest with a
crossbow, in broad daylight, on a busy Ottawa city street.[6]
In 1992, Ronald Bell
stepped out from behind two buildings in Winnipeg, walked behind an
unsuspecting twenty-year old Terri-Lyn Babb and fired a lethal shot into the
back of her head. It was the middle of
the afternoon and at the time Babb had been waiting for a ride at a bus stop.
Evidence at Bell's trial showed that a year-and-a-half earlier Babb had
suffered from bouts of depression and had been a patient at the hospital where
Bell worked. Bell became infatuated
with the pretty young patient, and after Babb spurned his advances, he posted hand
bills in the hospital and in her neighbourhood, detailing her emotional
problems. Bell then followed her over a
period of several months, recording in a diary her daily movements, what she
was wearing, and who she was with. The
notebook, tendered in evidence during the court proceedings, shows the mind of
a man becoming increasingly more obsessed with a woman. After almost two years of torment, Babb
obtained two peace bonds, ordering Bell to stay away from her. Within eight months, Babb was dead. Bell subsequently pleaded guilty to her
murder and on May 30, 1994, was sentenced to life imprisonment with no parole
for eighteen years.[7]
In 1993, Sherry and Maurice
Paul were murdered by Andre Ducharme at their farmhouse outside of Winnipeg,
Manitoba.[8] Shortly afterward, Ducharme killed himself. Maurice Paul and Andre Ducharme had grown up
together and Sherry Paul "inherited" him as a friend when she married
Maurice. Ducharme visited the Paul home
on many occasions and ultimately became obsessed with Sherry. Spurned in his advances, Ducharme told
Sherry: "You're not going to live to see your next birthday and I'm not
going to live to see my next birthday".
Ducharme was known to own a firearm.
He was charged with uttering threats contrary to section 264.1 of the
Criminal Code, and was released from custody on condition that he not
communicate with Sherry or come anywhere near her residence.
Before and after making
this threat, Ducharme had spoken about killing Sherry and himself to his landlady
and to others. On some occasions, he
discussed these thoughts while under the
influence of alcohol; on
others, he was sober. Sherry was told
about these threats, but did not take them seriously at the time.
A week before Sherry's
death, an incident with an incredible twist of irony occurred which changed
Sherry's approach to Ducharme's comments.
Terri-Lyn Babb was gunned down outside the hospital where Sherry
worked. On duty at the time, Sherry ran
to the scene to see if the victim's hair color was similar to her own. She believed, apparently, that Ducharme may
have shot a stranger by mistake, believing it to be her. Sherry immediately instructed that the
uttering charge, previously agreed to be dealt with on a non-judicial basis, be proceeded with in the usual way
before the criminal courts. Six days
later, however, Sherry's worst fears materialized. Andre Ducharme, the man
who had been stalking her, finally killed his target.
Most stalkers do not,
however, kill their victims. They follow
and terrorize them. The case of Colleen
Kelly is perhaps the best illustration of the lengths to which stalkers will go
to control and terrorize their prey.
Colleen, an attractive
young Australian school girl, was delighted to be asked out by the curly-haired
and more sophisticated boy from next door.
She did not expect, however, that Mark Harrison's appalling behaviour
would dominate and dictate her life for the next decade.
After dating for a while, Colleen
called off the relationship. Harrison
was furious. He beat her up savagely,
and often. Out of sheer terror, Colleen
remained with him. After one
particularly vicious assault, which
lasted for an hour and a half, and hospitalized Colleen, she decided to break
free from Harrison. Colleen changed her
job, her address, and left strict instructions with her family not to pass any
information to him. Outraged, Harrison roamed
the streets searching for Colleen. He
broke into her parents' house three times, looking for her. He tried to run her over at work with his
motorcycle. For that, he was arrested,
charged, bound over to keep the peace, and released, only to resume stalking
Colleen.
Harrison then hatched an
incredible plan to watch her every move.
He tunnelled under the floor boards of her parents bungalow, coming up
through the floor of a closet and, when the house was empty, made his way into
the attic. From above, he drilled holes
into the ceiling of every room, and tapped into the telephone. For three months, Colleen and her family had
no idea that he was spying and eavesdropping on their every move. On occasion, when the house was vacant, he
would descend to leave telltale clues that someone - perhaps he - had been in
the house. But each time he retreated
to his lair, where he made himself comfortable with an old mattress and a
supply of tinned food.
To her horror, Colleen's
mother found Harrison hidden in a closet one day. He fled, and the family mistakenly assumed that he had broken
into the house using a key. The truth
did not emerge until later on, when police searched the house as a result of a
hostage taking incident involving Harrison and Colleen's father. It was, for all of them, an horrific
discovery. This time, Harrison was
jailed for eight months.
Colleen moved to England,
and her family moved to a secret location in Australia. The prison term did not, however, dampen
Harrison's obsession with Colleen.
After his release, he broke into the home of one of Colleen's friends
and found letters bearing her new address in London. He then conned his parole officer into getting a visa allowing
him to visit England, and then left to pursue Colleen.
A few days later, Colleen,
now working under a different name, looked out of her London window and saw a
shadowy six foot tall figure standing at the corner, looking up at her. It was Harrison. Colleen barricaded herself in her apartment, and called the
police. Harrison eluded arrest, and
fled to France. Shortly after, he tried
to re-enter England, but was arrested at Heathrow and was subsequently deported
to Australia. British authorities
concluded, however, that he could not be charged with any offence in England
"because he had not broken the law there".
Until recently, this type
of conclusion almost became the norm in the United States, Canada, England and
Australia because, as I shall soon show, Anglo-based criminal law focusses on
the prohibition of specific incidents - such as assault or threat - not a course
of conduct that is threatening.
Legislation clearly was required to deal with this type of insidious
behaviour.
Twenty-one months after
Patricia Allen was killed with a crossbow in Ottawa, and after the deaths of
several other women at the hands of male stalkers, Canada enacted its first
anti-stalking law. Section 264 of the
Criminal Code, headed "Criminal Harassment", provides the following:
264. (1) No person shall, without lawful authority
and knowing that another person is harassed or recklessly as to whether the
other person is harassed, engage in conduct referred to in subsection (2) that
causes that other person reasonably, in all the circumstances, to fear for
their safety or the safety of anyone known to them.
(2) The conduct mentioned in
subsection (1) consists of
(a) repeatedly following from place to place the
other person or anyone known to them;
(b) repeatedly communicating with, either
directly or indirectly, the other person or anyone known to them;
(c) besetting or watching the dwelling-house, or
place where the other person, or anyone known to them, resides, works, carries
on business or happens to be; or
(d) engaging in threatening conduct directed at
the other person or any member of their family.
(3) Every person who
contravenes this section is guilty of
(a) an indictable offence and is
liable to imprisonment for a term not exceeding five years; or
(b) an offence punishable on
summary conviction.
In this article, I will
examine the legal framework that existed to deal with stalking activities
before the passage of this law. My
starting point will be England during the 1700's, where much of our criminal
law was first developed. I will move
quickly to the post-Confederation situation in Canada, tracing the relevant
laws that have been passed by Parliament from the late 19th Century to the
present time. I will next consider the
legislative history underlying section 264 of the Criminal Code, including
testimony before a Parliamentary Committee in 1993 that led to two pivotal
changes to the original Bill.
Before dealing with any of
these issues, however, I intend to describe four categories or
"profiles" of people who stalk people, as well as something of their
behavioral patterns. I do this for three
reasons. First, an understanding of the
type of person most likely to become involved in stalking activities may
provide some insight into the risks that individual stalkers pose to their
victims. Second, an understanding of
the peculiar nature of this offence,
and the offenders behind them, tend to shed some light on the social factors
that prompted Parliament to act in the first place. Finally, these profiles, when used as a backdrop, can assist in
understanding the sometimes bizarre actions and motives of individual stalkers in individual cases.
Profile of a
Stalker
In general, stalking
involves one person's obsessive behaviour toward another person. The stalker's actions may be motivated by an
intense affection for or an extreme dislike of the victim. Stalking behaviour may be overtly irrational
or violent, or be anchored on benign acts that in another context might be
welcomed or considered flattering by the recipient.
Many stalkers are not
violent, but all are unpredictable. The
irrational mania that drives them to pursue their quarry is beyond
interpretation within the normal framework of social behavior. It is the unpredictability that generates
the most fear, coupled with the knowledge that, in some cases, the stalker's behaviour
may, without warning or apparent reason, turn rapidly violent. Escalation in the level of threat forms one
of the most common features of stalking.[9]
Psychological, psychiatric,
and forensic experts have concluded that at least four different categories or
" profiles" of stalkers exist.[10] Their motives and behaviours may differ, and the potential for
aggressive behaviour may differ between individuals within categories.[11] Moreover, these categories do not represent air-tight
compartments. Some stalkers may exhibit
characteristics associated with two or more of the categories or profiles of
the four "typical" stalkers.
a) Erotomania: The Delusional Erotomaniac
The American Psychiatric
Association defines erotomania as the presence of a persistent "erotic
delusion that one is loved by another".
The "other person" may not even know, and often does not know
of the existence of the person operating under the delusion.[12] The erotomaniac often fantasizes the existence of a romantic or
spiritual love with someone who typically is of a higher social status or is in
a position of authority relative to the erotomaniac individual.[13] Sexual attraction is not required, though the erotomaniac often
seeks to establish an intimate relationship with the object of his or her
fantasy.[14] As a consequence, an accused stalker may not "intend"
to cause fear; instead, he or she may simply "intend" to establish a
relationship with the victim.[15] This becomes a pivotal
consideration when framing legislation that is going to be effective and
enforceable.
Erotomania generally
includes the stalking behaviours typically observed in the delusional
erotomaniac. These include repeated
efforts to contact the fantasized individual by telephone, letter, gifts,
attempted visits and physical surveillance.[16] One of the most publicized instances of male erotomania can be
found in the case of Tarasoff vs. Regents.[17] There, Prosenjit Proddar was accused of the murder of Tatiana
Tarasoff. At trial, the evidence
established that Proddar interpreted a New Year's Eve kiss by Tarasoff as an
indication that she loved him. After
repeated, but failed attempts to gain Tarasoff's attention and affection, Proddar
attempted to orchestrate a dangerous situation from which he could rescue
Tarasoff; he assumed that his heroism would reveal to her the depth of her
feelings for him. His plan went awry,
and Proddar fatally stabbed Tarasoff.
The goal of an erotomaniac
is to advance a relationship with the object of his or her fantasy.[18] The key element here is the flagrant misperception of
reciprocity: the delusional erotomaniac
believes that the target reciprocates an intensity of emotion and desire for union
despite the absence of any sort of actual relationship or emotional
reciprocity.
b) Borderline Erotomaniacs
This category is different
from delusional erotomania in two basic ways.
First, and most importantly, borderline erotomaniacs have developed
intense emotional feelings towards other individuals who they know do
not reciprocate their feelings.[19] Second, unlike delusional erotomaniacs, borderline erotomaniacs
usually have some history of actual emotional engagement with the object of
their attention.[20] It may have been quite trivial; an innocuous glance at a social
gathering may be sufficient.[21]
The actual behaviour of the
borderline erotomaniac may not differ significantly from that of the delusional
erotomaniac, i.e., they may both repeatedly write letters, send gifts, make
phone calls, and follow their targets.
The borderline erotomaniac, however, does not presume the target
reciprocates his or her feeling of affection.[22]
c) Former Intimate Stalkers
Former Intimate Stalkers
have an actual history of emotional dependence upon their target partner that
is severed when the relationship is terminated.[23] This element distinguishes the Former Intimate Stalker from both
of the previous categories. These
stalkers do not fantasize reciprocal idealized love. They have, in fact, previously had an intimate relationship with
their targets.[24]
Not surprisingly, Former
Intimate Stalkers often have had a previous history of abusive relationships.[25] Many are jealous of real or imaginary infidelities; as a
consequence, they demonstrate a strong need to control their former partner.[26] As one U.S. study has noted:
"He (the stalker) is so dependant on her that he would kill her
rather than let her go and not be able to live without her."[27]
Not insignificantly, the
Los Angeles Police Department, who seem to deal with more stalking cases than
any other investigative agency, estimate that 48 percent of their caseload
consists of this type of stalker.[28] It should also be observed that Former Intimate Stalkers
sometimes target the current lover or spouse of the victim in an attempt to
eliminate the person they perceive to be the principal obstacle to
reunification.[29] Taken to the extreme, this can result in the classic double
murder and suicide of the entire love triangle, as in the case of Sherry and
Maurice Paul, and Andre Ducharme, discussed supra.
d) Sociopathic Stalkers
Two important features
distinguish Sociopathic Stalkers from the other three categories. First, they, in general, do not seek to
initiate or maintain an interpersonal relationship with their victim. Second, they generally formulate the
characteristics of the "ideal victim", then seek an acceptable
example that fits the criteria selected.[30]
The Sociopathic Stalker
sometimes becomes a serial murderer or a serial rapist. The case of Charles Ng provides a good
example. Ng and his associate, Leonard Lake, are said to
have sought out, tracked then killed their victims for one of two reasons: either the target had a desired asset; or
the target had a desired "personal characteristic". I should explain this bizarre case a bit
further.[31]
When he fled from
California to Calgary in 1985, Ng faced thirteen counts of murder. Most were sex related and all were
gruesome. The Supreme Court of Canada
described them as "a series of offences of an almost unspeakable
nature."[32]
In one instance, Ng is
alleged to have located a San Francisco homosexual through a sex trade
magazine, went to his residence, entered on the pretext of purchasing sex, then
killed the target. In a second case, Ng
once again allegedly tracked his target through newspaper ads. He needed video equipment, Harvey Dubs had
some, and was advertising it for sale.
Ng responded to the ad, kidnapped Dubs and his family, killed them and
took the video equipment. In the third
case, Ng sought to find someone who looked like Lake so that the victim's driver's licence could be taken
and a new identify established for Lake.
Such a victim was located, he was shot in the head and both the victim's
driver's licence and his car were taken.
In yet another instance, Ng
reportedly telephoned his young female victim where she worked. She did not know Ng. He lured her into his car by saying that her
boyfriend was in trouble. He then
kidnapped her, raped her, videotaped her in confinement, killed her and burned
her body.
Further counts involved
tracking co-workers down, and killing them because they posed a threat to Ng's
desire to climb the corporate ladder at work.
After a five-year battle fighting extradition in the Canadian courts, Ng
was ordered to the United States and now faces the death penalty in California.
Ng's stalking behavior
formed an important -- perhaps essential -- part of his crime. At no time did he seek to establish a
"relationship" with any of his victims; he sought something from
them, and stalked them to obtain it.
Killing the victim simply became a necessary part of the evidentiary cover-up that allowed him to avoid
detection for over a year.
The Legal
Framework
a) Early English Law
Stalking scenarios involve
a series of individual and sometimes quite unrelated acts, such as repeatedly following
someone, then slashing their car tires and leaving a dead animal at their
doorstep.[33] The acts, though done individually and at different times and in
different locations, build on one another.
Stalking, therefore, is quite different from most crimes. By nature, it is not a single
occurrence. It involves a course of
conduct that may extend over several days, weeks, or even years.
Early English law, on the
other hand, focussed primarily on the
punishment of specific prohibited acts, such as theft, murder and robbery. Stalking as a form of human behaviour was
not itself an offence, although some aspects of it were used to establish the
commission of offences such as assault.
Early law thus treated stalking as a precursor to another crime or, in
some cases, as evidence of its mens rea.
Murder provides a good
example. Under the common law, the
difference between murder and manslaughter rested in the degree of mens rea
present. Murder required
"malice forethought". Amongst
other things, malice could be proven by showing an intention to harm someone
else. "The evidences of such a
malice", Hale said in 1736[34] and Blackstone repeated in
1771[35] "must arise from
external circumstances discovering that inward intention, as lying in wait,
menacings antecedent, former grudges, (etc)." In the case of a homicide, therefore, "lying in wait"
for the victim provided evidence of an intention to commit murder. In other instances, lying in wait formed an
essential ingredient of the offence itself, as in the case of the
statutorily-created crime of "mayhem" (maiming).[36]
Early English law did,
however, provide victims some relief on two fronts: prosecution for sending threatening letters, and by requiring
potential lawbreakers to enter into a "surety of the peace". I will briefly consider the effectiveness of
both of these procedures.
In response to a wave of
terrorist-style activity in England during the early 1700's, the Parliament at Westminster
outlawed sending letters that threatened the recipient with death or the
burning of property unless a sum of money was paid.[37] In 1754, Parliament extended the law to include the sending of
non-demanding but threatening letters.[38] Both offences required imposition of the death penalty, as was
the case for virtually all felonies in England at the time.[39] There is no evidence in the law reports, however, that this law
was used to suppress stalking behaviour; rather, it appears that it was used primarily
to counter extortion, for the law only prohibited written threats. Moreover, except for the most egregious
situations, the acquittal rate appears to have been high -- not an uncommon
result during that era for non-violent crimes that carried the ultimate
punishment.[40]
However, the principal
English criminal law remedy designed to prevent stalking was giving
"sureties of the peace".[41] On application, a respondent stalker could be required to give a
certain amount of money as security to ensure that he (or she) would keep the
peace.[42] The purpose of this procedure was to prevent breaches of the
peace before they occurred. As
Blackstone said:[43]
". . . it is an honour, and almost a singular one, to our English
laws, that they furnish a title of this sort ["of the means of PREVENTING
offences"]; since preventive justice is upon every principle of reason, of
humanity, and of sound policy, preferable in all respects to punishing
justice ...."
An applicant could obtain a
surety of the peace by providing a Justice of the Peace with an assurance, on
oath, that he or she had been threatened by the respondent with bodily harm.[44] Hawkins, a leading contemporary authority on the subject (1739)
said that: [45]
"It seems clear, that wherever a person has just cause to fear that
another will burn his house, or do him
a corporal hurt, as by killing or beating him, or that he will procure others
to do him such mischief, he may demand the surety of the peace against such
persons; and that every Justice of Peace is bound to grant it upon the parties giving him satisfaction
upon oath that he is actually under such fear; and that he has just cause to be
so, by reason of the others having threatened to beat him, or lain in wait for
that purpose; and that he does not require it out of malice, or for
vexation."
There was, however, some
doubt about whether anyone was entitled to apply for a surety of the
peace. Some authorities questioned
whether Jews or Pagans could apply, for instance.[46] "However", Hawkins observed, "it is certain that a
wife may demand it against her husband threatening to beat her outrageously,
and that a husband also may have it against his wife."[47] However, a few authorities added that if a wife respondent could
not find sureties, she should herself be committed, "so . . . a man may be
rid of a shrew".[48]
If the applicant had not
previously been assaulted or threatened, she (or he) was required to allege a
fear for personal safety, and outline a reasonable basis for that fear.[49] Blackstone contended that this burden of proof could be satisfied
by showing the respondent's "menaces", or by establishing that the
respondent had "lain in wait" for the applicant.[50]
The surety would be
forfeited if the respondent committed any act of violence, including an assault
toward the applicant.[51] There were, however, limitations: a bare trespass on the lands of
the applicant, without any accompanying breach of the peace, would not provide
an appropriate basis for a forfeiture.[52] Nor would mere disparaging remarks, such as calling the applicant
a liar.[53]
The case of Richard Dunn,
decided by the English courts in 1840, is an important one for several reasons.[54] First, it may well be the first case of stalking in the
Anglo-Canadian law reports. Second, the
case demonstrates, in cold terms, that stalking is not at all a new
phenomenon. Finally, it provides yet
another example of how Victorian judges were prepared to sacrifice a case that
screamed for justice simply on the basis that the pleadings had been
imperfectly drawn.
Richard Dunn was a lawyer,
practicing in Middlesex County in England.
Around 1838, he became infatuated with Angela Georgina Burdett Coutts,
who, at the time, was single and had no interest in Mr. Dunn. In fact, she didn't even know him. Dunn initially wrote to Ms Coutts, using
language that the court described as "strange". Coutts simply tossed the letters aside,
evidently on the basis that they appeared to have been written by someone who
was insane. Over the next two years,
Dunn's activities towards Coutts escalated.
He followed her when she was travelling. He approached her, hoping to start up a conversation. He wrote more letters. Finally, Ms Coutts sought and obtained a
surety of the peace on the basis that she feared for her personal safety.
Dunn was arrested, and held
in custody. After a period of time, Ms
Coutts decided to discontinue legal proceedings and Dunn was released from
jail. Imprisonment did not, however,
stop Dunn. On his release, he wrote
further letters, left his business card, and asked to meet with Ms Coutts. He started to follow her again, watching
where she was going, and what she was doing.
A second surety was sought and obtained. This time, Dunn became
violent and had to be restrained by court officials. He was sent to jail, but later was released because of a defect
in the warrant of committal.
On the loose again, Dunn
started writing letters to Coutts, and repeatedly went to her house. He followed her to church. He waited for her, on the roadway, waving at
her and made gestures towards her. He
then wrote to her, asking to meet. In
the letter, he said: "If you
refuse this request, you will, when it is too late, repent a course, the
consequences of which will sooner or later fall on yourself and your
family".
Dunn persisted further, and
raised the stakes. He accosted Ms
Coutts directly while she was walking with a friend in the middle of the
afternoon. A servant was summoned to protect
her. Dunn then followed Coutts to a
house where she had taken refuge.
Police were called in, and Dunn was, once again, taken into custody and
asked to enter into a surety of the peace.
That application was granted by the court, and was challenged by Dunn on
the basis of a motion for a writ of habeas corpus.
All of the elements of
stalking were present. Persistent, but
unwanted advances. Letters
written. Coutts was repeatedly followed
and watched. Dunn's activities
escalated as time went on. Dunn
threatened Coutts and her family with bodily harm. Coutts began to fear for her safety. She changed her lifestyle, as well as her daily patterns. She sought the only legal remedy available,
but to no avail. A former police
officer confirmed to the court that, based on his investigation, Ms Coutts had
a reasonable basis to fear for her safety.
The case seemed pretty strong, at least by 20th century standards.
Lord Denman, C.J., heard
the application for an order of habeas corpus along with Littledale,
Williams and Coleridge, J.J. Their
decision was unanimous. Jurisdiction to
hear a request for a surety of the peace, said Denman, C.J., is anchored on the
facts alleged. If a threat is not
alleged, a surety cannot issue.
The court noted that there
was little in the way of case law that could help on the application. The evidence in the case did not, however,
allege a threat against Coutts. That
could only be inferred from Dunn's course of conduct. The court, Denman, C.J. concluded, should not be asked to infer a
threat.[55]
"This case may then be said to prove that the threats need not be
by word of mouth directed against the exhibitant, but that looks, gestures, and
conduct may express them with equal force; and this is not to be denied: but the invariable rule is that, where
reliance is placed on a general fact which may be inferred from particular
facts, but does not flow from them by necessary implication, the party shall
draw that inference himself, and swear to his belief of its correctness, and
not leave the Court to draw the inference instead of him."
The application was
allowed, and Dunn was released from custody again. Incredibly, Denman, C.J. blamed the law for the obvious injustice
that had occurred. Perhaps he forgot that
the law in the area was largely judge-made, not statutorily based. Nonetheless, he comforted himself by
concluding the judgment of the court in the following words:[56]
"Perhaps the law of England may be justly reproached with its
inadequacy to repress the mischief, and obviate the danger, which the
prisoner's proceedings render too probable; and we may naturally feel surprise
if none of the numerous Police Acts have made specific provisions for that
purpose. But, the power of the sessions
and of the justice of the peace to make the order now challenged before us
depending wholly on the words of the commission; and those words not being
satisfied by the articles exhibited, we are bound to decide that the prisoner
must be discharged."
Curiously, a different
result occurred in the case that immediately follows the report of the Dunn
case. In the King vs Stanhope,[57] the applicant was the Marquis of Hertford, and the respondent
was the Honourable Augustus Stanhope.
As in the case of Dunn, the respondent in this case raised a series of
technical objections to defeat the application. He said that affidavits could not be used on the
application. More importantly, as in
the case of Dunn, he argued that the materials filed were insufficient in the
sense that they did not actually state that the defendant was in fear of bodily
harm. Rather, it was argued, the
applicant only spoke of his fear that the respondent would make him (the
applicant) commit a breach of the peace.
The decision of the court
was delivered by Chief Justice Abbott. He
noted that the respondent had said that he would do everything in his power to
annoy Lord Hertford, short of actual violence.
Chief Justice Abbott was not moved.
He said: "It is impossible
for a man to keep within the strict line he has laid down for his own
conduct". The court concluded that
it was its "imperative duty" to require that the security issue. In response to the suggestion that the
respondent would contain himself and would fall short of violence in his
attempts to "annoy" the applicant, the court said this:
"We should be poor guardians of the public peace, if we could not
interfere until an actual outrage had taken place, and perhaps fatal
consequences ensued."
That surely was the correct
law. An applicant need not demonstrate
that a prima facie case of assault has already occurred. The purpose of this procedure was to ensure
that a breach of the peace did not occur in the future. That sentiment certainly animated the
Supreme Court of Canada over 100 years later in the case of MacKenzie v
Martin.[58] Whether or not requiring a surety of the peace actually achieves
this objective is, however, debatable and whether or not a surety of this sort
can deal with the fear instilled by a stalker is even less clear.
I will discuss in the next
part how this legal framework, with all of its warts and imperfections, was
transposed to the Canadian Colonies during the 19th century, and remained in
effect until Parliament intervened over 100 years later to deal specifically
with the threat posed by people who stalk people.
b) Transition to Canada
English criminal law rooted
quickly in the early Canadian colonies.
Common law principles were, for the most part, adopted by colonial
legislatures during the latter part of the eighteenth century and during the
following century the Parliament at Westminster provided a steady stream of
prototypes for the Canadian statute book.[59]
As a result, English legal
institutions and English precedent became a convenient if not an obligatory starting
point for early Canadian courts.
Textbooks and reported cases from this era amply demonstrate this.
The first two Canadian
textbooks on the criminal law emerged in rapid succession during the 1830's --
the first at Toronto and the second at Halifax.[60] Both were intended to assist the magistracy in the discharge of
their many duties, and were modelled after Burn's highly successful work on the
Justice of the Peace, first published in England in 1755.[61]
The first of these works,
entitled The Provincial Justice, was published in 1835 by William
Conway Keele. Born in England in 1798,
Keele emigrated to Canada and settled near Toronto. He practised law in southern Ontario and published several books
on various aspects of the law, although he is best known for his study of the
criminal law.
Because it was the first,
Keele's text assumes a special importance in understanding the transition of
the law from England to Canada. His
analysis expressly reflected the writings of the leading English authorities
such as Hawkins, Blackstone and Coke.
Keele described some common law offences that, in theory, could be used
as a basis for countering some aspects of the stalking spectrum such as
abduction, assault, extortion and maim.
However, the two most promising areas were the same as those in
England: prosecution for threatening
someone, and the granting of judicial sureties of the peace.
Concerning threats, he
said:[62] "With respect to threats of personal violence, or any
other threats by which a man is put in fear, and by means of which money or
other property is actually extorted from him, these we have already seen amount
to the crime of "robbery". .
. . but the threats which we have now chiefly to deal with are those contained
in letters or other writing, sent or delivered to the party threatened,
by which he is menaced with death or the burning of his house, or with the infliction of any other dire calamity,
when accompanied with a demand of money; or with an accusation of having
committed some heinous crime for the purpose of extorting money. This was formerly considered so great an
offence that it was made high treason by the statute of 8 H.5. c. 6."
Respecting sureties, Keele
said:[63] "Whenever a person has just cause to fear that another will
burn his house, or do him or his wife or children, a corporal hurt, or
unlawfully imprison any of them, or that he will procure others to do so, he
may exhibit articles of the peace against the person from whom he
apprehends such mischief, either in the courts of Chancery or King's Bench, or before a justice of the peace; and
such court or justice is bound to require the party to find sureties to keep
the peace towards the exhibitant, upon the latter making oath that he is
actually under such fear from the other person, and that he has just cause to
be so, and that he does not require such surety out of malice or vexation . .
. A wife may demand it against her
husband, and a husband against his wife."
Significantly, the form
provided by Keele for a surety suggests the existence of domestic violence in
the pre-Victorian Canadian provinces:
"C.D. wife of E.D. of
_________ in the said district,
labourer, prays surety of the peace against the said E.D. her said husband, for
fear of death or bodily injury.
First -- this informant on her oath saith that she intermarried with her
said husband about ____ years ago,
since which time he hath often in a cruel, barbarous, and inhuman manner, beat,
abused and ill-treated this informant, and frequently threatened to take away
her life.
Secondly -- this informant saith that on the ______day of _________,
last past, her said husband in a violent passion (state the particular acts of
cruelty).
Lastly -- this informant saith, that she is actually afraid her said
husband will do her some bodily injury, if not murder her, should she return
home again to him; and saith that she doth not make this complaint against her
said husband out of any hatred, malice or ill-will which she hath or beareth towards
him, but purely for the preservation of her life and person from further
danger."
The book has been out of
print for well over 100 years, and few copies have survived to the present.[64] Most Canadian law schools have a copy of at least one of the five
editions in their academic library, and York University has permitted their
copy of the third edition (1851) to be microfilmed as part of the CIHM/ICMH
Microfiche Series (collected and organized by the Canadian Institute for
Historical Microreproductions in Ottawa), also available at most large academic
research libraries in Canada.
Canada's second textbook on
the criminal law, entitled Justice of the Peace,[65] was published in 1837 by John George Marshall, the Chief Justice
of the Courts of Common Pleas at Halifax, Nova Scotia. It became a standard textbook for local
magistrates and was used in Nova Scotia throughout much of the 19th century.[66]
Marshall agreed with
Keele's analysis of the law on most points.
He could point to no further mechanisms for controlling stalking
activities. His treatment of peace
sureties was, however, a bit more detailed:[67]
". . . wherever a person has just cause to fear that another will
burn his house, or do him a corporal hurt, as by killing or beating him, or
that he will procure others to do him such mischief, he may demand the surety
of the peace against such person, and that every Justice of the Peace is bound
to grant it upon the party's giving him satisfaction upon oath that he is
actually under such fear, and that he has just cause to be so, by reason of the
other's having threatened to beat him, or laid in wait for that purpose; and
that he doth not require it out of malice or for vexation.......
Note also, the surety of the peace shall not be granted but where there
is a fear of some present or future danger, and not merely for a battery or
trespass that is past, or for any breach of the peace that is past; for this
surety of the peace is only for the security of such as are in fear; but the
party wronged may punish the offender by indictment, and the Justice if he see
cause, may bind over the affrayer to answer unto the indictment."
Criminal law in the
Canadian Colonies thus tracked the common law in England. Stalking activities were not per se
an offence. Some activities on the
stalking spectrum were unlawful, but the law was not particularly well-suited
to dealing with stalking as a threatening course of conduct. Sureties of the peace were available to
women who were being harassed or threatened, but the burden of proof was
high. And prosecution for making a
threat - - the only charge realistically available -- was confined to
situations where the threat had been made in writing.
c) Canada's First Criminal Code,
and subsequent statutory developments
Before Confederation, the
provinces of Canada and each of the Crown colonies were responsible for
enacting their own criminal laws. Even
afterwards, the criminal law consisted of twenty different statutes, each with
its own particular subjects, such as procedure,[68] accomplices,[69] perjury,[70] forgery,[71] and offences against the
person.[72] Penal law of the day provided a reflection of Confederation
itself: an amalgam of laws, derived
from a common law base, but adapted over a number of years to meet local
circumstances. Sir John A. Macdonald
advocated uniformity in the criminal law, evidently believing that it would
help unify the colonies. He did not,
however, have immediate plans for a national Criminal Code, feeling that
in the circumstances it was prudent to move slowly on the idea.[73]
Canada's first Criminal
Code of 1892 demonstrated no further ability to control stalking than the
common law. Sureties of the peace
continued to be available. Abduction[74] was an offence. So was assault cause bodily harm.[75] It was unlawful to maim.[76] It was also an offence to send letters which demanded money
failing which property would be burned or people would be murdered.[77]
Few, if any, helpful
changes were made to the Criminal Code during the following nine decades. Sureties were sometimes resorted to in cases
where one person was harassing another, although the procedure does not appear
to have been widely used. In R. v.
Faustman,[78] the accused was bound over
to keep the peace for one year in a "Peeping Tom" case. In R v. Poffenroth,[79] the jurisdiction in
preventive justice was exercised where a man had been following after and
annoying a woman on a city street. In
1954 the Supreme Court of Canada confirmed that the procedure in preventive
justice was in force in Canada and had not been interfered with by any
provisions of the Criminal Code.
In MacKenzie v. Martin[80] Mr. Justice Kerwin said
the following:[81]
"In R. v. County of London Quarter Sessions, [1948] 1 All
E.R. 72 at page 74, Lord Goddard, C.J. pointed out that Lansbury v. Riley
was clear authority that Justices can bind over whether the person is, or is
not, of good fame. Later he
stated: "In the case of the
present statute there is a consensus of opinion to be found in the books
extending back for some four hundred years that this Act, which was described
by both Coke and Blackstone as an Act for preventive justice, does enable
Justices at their discretion to bind over a man, not because he has committed
an offence, but because they think from his behaviour he may himself commit or
cause others to commit offences against the King's peace. It is abundantly clear that for several
centuries Justices have bound by recognizances persons whose conduct they consider
mischievous or suspicious, but which could not, by any stretch of imagination,
amount to a criminal offence for which they could have been indicted.
"Lord Goddard expressed the view that the catalogue of the large
number of instances which would justify sureties for good behaviour being
taken, given in Dalton's Countrey Justice was not intended to be
exhaustive. In my view the common law
preventive justice was in force in Ontario:
ss(2) of Section 748 or any other provision of the Code to which our
attention was directed does not interfere with the use of that jurisdiction;
and the respondent was intending to exercise it. He, therefore, had jurisdiction over the subject matter of the
complaint and did not exceed it."
That, then, describes the
legal framework as Canada moved towards the 21st century. Our ability to control and deter stalking
can be summarized in two words: spotty,
and ineffective. Available legal
mechanisms could scarcely keep up with classic stalking activities such as
repeatedly following or telephoning someone. Although existing laws could deal
with single incidents, they were not created to combat repeated threatening or
harassing behaviour, a dominant characteristic of stalking. Moreover, existing law was hopelessly
inadequate in dealing with the
"new wave" of stalkers who harass by video, fax, voice-mail, E-mail
or on the Internet.[82] What was needed was a law that prohibited ongoing conduct which
instilled fear on the part of the target victim.
Canada's hand was finally
forced in 1993, in the wake of several terrible cases of unrelenting stalkers
who finally killed their targets. In
the next part I will discuss the backdrop to the enactment of Canada's first anti-stalking legislation,
and will then consider its effect on Canadian law.
Legislative
History of Section 264 of the Criminal Code
a) The U.S. Backdrop
California enacted the
first anti-stalking legislation in 1990.
Since then a virtual torrent of similar legislation has swept across the
United States. Forty-nine states and
the District of Columbia now have anti-stalking legislation. Only one -- the State of Maine -- has failed
to act. Maine uses its terrorizing
statute to deal with stalking behaviour.[83]
While alike in their
purposes, American state statutes differ in their definitions and in their
elements. Typically, states define
stalking as wilful, malicious and repeated following and harassing of another
person. Three states proscribe
"lying in wait". Many
stalking statutes prohibit non-consensual communication. Seven states include
"surveillance" in the description of stalking behaviour. Many states require a pattern of conduct.
Provisions often require that the victim have a reasonable fear for his or her
safety or a fear of death or bodily injury.
Texas requires that, in order for an accused to be charged, some of the
stalking behaviour must occur after the victim has reported the conduct
to law enforcement authorities.
The American experience has
suggested that four main issues must be considered in the development of
anti-stalking legislation. First, what
level of threat should be required?
Fourteen states require the perpetrator to make a threat against the
victim. Three states require a threat
which is then acted upon by the perpetrator.
Thirteen states require the perpetrator to have had the intent and/or
the apparent ability to carry out the threat.
The majority of the states -- 33 -- include in the definition of
stalking actions that would cause a reasonable person to feel threatened, even
if there has been no verbal threat made by the perpetrator.[84]
The second issue concerns
the intent of the perpetrator. Should
legislation require that the perpetrator intends to cause fear in the
victim? What about delusional
lovers? As noted earlier, they don't
intend to instill fear; rather, they
want to establish a relationship with the victim. Is it sufficient, as in the states of Mississippi and New Jersey,
that the perpetrator simply intends to cause alarm or annoyance? A significant number of the states do not
require the perpetrator to have the intent to cause fear; rather, it is
sufficient if he (or she) intends to do an act that results
in fear. Should that subjective
approach be tempered with an objective test -- i.e. is the fear, though
honestly held, reasonable in all of the circumstances?
The third issue concerns
whether and to what extent a course of conduct must be shown. In general terms, the crime of stalking does
not amount to a single, isolated incident; rather, it consists of a series of
actions taken together. Some of the
state statutes specify how many actions must occur and over what period of
time. Illinois, for instance, refers to
"acts done on at least two occasions . . ." Michigan requires a "series of two or more separate,
non-continuous acts". Laws in
several of the states simply require incidents "on more than one
occasion".
The final issue concerns
how wide the net of criminal liability should be. At the heart of this issue is the fact that, of necessity,
anti-stalking legislation seeks to criminalize behaviour that would otherwise
be quite lawful and, in some circumstances, perfectly acceptable.
There is nothing inherently
wrong with following someone. Nor is
there anything inherently wrong with telephoning someone repeatedly. Police investigators do it all the time. So do those who serve subpoenas or a
statement of claim. The same can be
said for insurance company investigators retained to detect malingering,
newspaper reporters who pursue a story, private investigators hired to gather
evidence in domestic disputes, picketers in labour disputes, and citizens who
pursue drunk drivers so that they may be reported to police on a
"tips" line.
To do these tasks
efficiently, persistence counts. And,
in some circumstances, you must pursue the person repeatedly. Anti-stalking statutes, however, criminalize
what otherwise would be legitimate behaviour based upon the fact that the
behaviour induces a fear on the part of the victim. Just how you define the activity you seek to criminalize without,
on the one hand, being too restrictive, effectively emasculating the
legislation and, on the other, being vague or overbroad, thus rendering the
statute susceptible to constitutional challenges, becomes the principal
challenge to law makers.
In general, American courts
have upheld the constitutional validity of anti-stalking legislation despite
vigorous challenges anchored on arguments that the legislation is vague, overbroad,
infringes on the right to freedom of expression or deprives defendants of their
right to due process.[85]
In 1993, the U.S. Congress
asked the Attorney General of the United States to develop and distribute to
the States a "constitutional and enforceable" model anti-stalking
code. A Task Force was established
composed of individuals from the National Governors' Association, the National
Conference of State Legislatures, the American Bar Association, the Police
Executive Research Forum, the American Civil Liberties Union and other public
and special interest groups. In October
1993, the Task Force presented its final report. It recommended the following model anti-stalking legislation:[86]
"The Model
Anti-Stalking Code for the States
Section 1. For purposes of this code:
(a) "Course of conduct" means
repeatedly maintaining a visual or physical proximity to a person or repeatedly
conveying verbal or written threats or threats implied by conduct or a
combination thereof directed at or toward a person;
(b) "Repeatedly" means on two or more
occasions;
(c) "Immediate family" means a spouse,
parent, child, sibling, or any other person who regularly resides in the
household or who within the prior six months regularly resided in the household.
Section 2. Any person who:
(a) purposefully engages in a course of conduct
directed at a specific person that would cause a reasonable person to fear
bodily injury to himself or herself or a member of his or her immediate family
or to fear the death of himself or herself or a member of his or her immediate
family; and
(b) has knowledge or should have knowledge that
the specific person will be placed in reasonable fear of bodily injury to
himself or herself or a member of his or her immediate family or will be placed
in reasonable fear of the death of himself or herself or a member of his or her
immediate family; and
(c) whose acts induce fear in
the specific person of bodily injury to himself or herself or a member or his
or her immediate family or induce fear in the specific person of the death or
himself or herself or a member of his or her immediate family;
is guilty of
stalking."
In reality, however, legislators
were busily passing anti-stalking legislation during the period of time that
the Task Force was doing its work.[87] In that sense, the horses may well have bolted before anyone even
thought about the barn door. Nonetheless, several states have demonstrated a
willingness to strengthen anti-stalking laws by passing amending legislation
that refined the original attempt.[88] Whether and to what extent the Model will shape future policy development
remains to be seen, although it is bound to be persuasive given its background,
composition of the Task Force and the mandate from Congress.
b) The Canadian Backdrop
As outlined earlier,
stalking-related killings which occurred in 1991 and 1992 prompted the
Government of Canada to undertake a
review of the law to see if improvements were needed. The key issue was whether section 423 of the Criminal Code,
concerning intimidation, adequately dealt with the problem of people who
stalk people.[89]
A resolution put forward by
Saskatchewan at the 1992 Uniform Law Conference was perhaps the first public
step that was taken to control stalking activities under the Criminal Code. In August, 1992 representatives from all ten
provinces, both territories, Canada, the Canadian Bar Association and the
Defence Bar met in Cornerbrook, Newfoundland to consider various proposals for
reform to the Criminal Code.
Saskatchewan proposed "that section 423 (c) and ( f) be redrafted
to prohibit the activities listed therein, where the person knew or was
reckless as to whether his or her actions would harass or cause fear to the
complainant". After debate, the
resolution was carried. Although at
this stage the proposed reform was directed to section 423, some of the seeds
for the legislation that resulted had thus been planted.
On September 23, 1992, the
Attorney General of Manitoba, the Honourable James McCrae, wrote to the Federal
Minister of Justice, the Honourable A. Kim Campbell, urging action in the area
of violence against women, especially the issue of stalking. Ms Campbell responded on December 14,
1992. She said, in part:
" As you are aware,
the treatment of women in our society and the question of violence against
women are issues of grave concern to me and should be of concern to all
Canadians. In order to improve the
situation, we must look not only to our laws, but also to our beliefs and
attitudes toward women and their role in Canadian society.
Canadian women are saying that they are afraid
of violence and we must address these fears.
Certainly the issue you have raised in this context, that is
"stalking", is important and should be given serious
consideration."
In the midst of these
discussions, a private member's Bill was tabled in the House of Commons on
December 10, 1992, by George Rideout, the Opposition Justice critic.[90] Tracking almost verbatim the language found in many of the
American state anti-stalking statutes, the Bill proposed that the Criminal Code
be amended by adding, immediately after s. 246, the following new section:
246.1(1)
Every one who wilfully, maliciously, and repeatedly follows or harasses
another person and who makes a credible threat with the intent to place that
person in reasonable fear of death or great bodily injury is guilty of an
indictable offence . . ."
The proposed offence would
have carried a maximum $1,000 fine and/or one year in jail for a first offence,
increased to $5,000 and/or two years imprisonment for subsequent offences. An enhanced penalty equal to those reserved
for subsequent offences was also available for accused who, while stalking, had
violated a protective court order which had previously been granted in favour
of the victim. The Bill proceeded no
further, however, as it was about to be overtaken by events that were soon to
occur.
Over the next few months,
the Federal Department of Justice consulted on the stalking issue with the
provinces and other interest groups. On
April 6, 1993, the Department hosted an "Exchange of Information Meeting
on Stalking" in Ottawa. A
background briefing note circulated to those in attendance described the
problem in the following terms:[91]
"Stalking is a phenomenon that is increasingly attracting media attention
in Canada and the United States. More
and more cases are being reported of women being stalked by men they used to be
involved with and from whom they may be trying to escape. Recent cases in various Canadian cities in
which women were stalked and killed by men they knew have greatly increased the
public concern directed at this issue."
The note also commented on
the mechanisms then available to counter stalking.[92]
"In Canada, there are several sections in the Criminal Code
that, to varying degrees, already cover the behaviour usually included in the
term stalking. Section 177 prohibits
loitering or prowling at night on another person's property near a dwelling
house. Section 264.1 prohibits
knowingly uttering a threat to cause death or serious bodily harm to someone.
The definition of mischief in
section 430 includes wilfully obstructing or interfering with someone's lawful
enjoyment or operation of property.
Section 372 prohibits making repeated telephone calls to someone with
the intent to harass him."
Much of the note, however, focussed on the effect of section 423 of the Criminal
Code:[93]
"Section 423, which prohibits intimidation,
is often described as being Canada's main anti-stalking provision. Generally, section 423 prohibits using
violence or threats of violence against someone or his spouse or children, or
intimidating someone by threats that violence will be done to him or his
relatives, or persistently following someone about, or watching where he lives
or works, for the purpose of compelling him not to do anything that he has a
lawful right to do, or compelling him to do anything that he has a lawful right
not to do."
The note also observed that
s.423 had been criticized by victims and various other interest groups for
several reasons. First, it was too
complicated and hard to prove. Second,
it provided for a summary conviction procedure, and was not punishable upon
indictment. Finally, and perhaps most
importantly, to establish liability under this section, "the accused must
not only have done one of the acts described, he must also have done it for the
reason described in the section. These
can be difficult motives to prove."
The briefing note concluded
by describing several issues intended for discussion at the consultation
meeting. Included were: should section 423 simply be amended, or
should there be a new section of the Criminal Code prohibiting
stalking? Should legislation require a
threat to kill or seriously hurt someone?
What mens rea is appropriate for this offence? Should recklessness be included as a form of
mens rea? Should the fear felt
by the victim be assessed subjectively or objectively? Should the offence only protect the victim
or should the section be broad enough to cover harm directed towards the
victim's family or new companion?
Finally, what should the maximum penalty be?
Three weeks later, on April
27, 1993, the Minister of Justice, the
Honourable Pierre Blais, tabled Bill
C-126 in Parliament. Amongst other
things, it contained a provision dealing with stalking, headed "Criminal Harassment". It provided:[94]
"264.(1) No person
shall, without lawful authority and with intent to harass another person or
recklessly as to whether the other person is harassed, engage in conduct
referred to in subsection (2) that causes that other person reasonably to fear
for their safety or the safety of anyone known to them.
(2) The conduct mentioned in subsection (1) consists of
(a) repeatedly following from place to place the other person or
anyone known to them;
(b) repeatedly communicating with, either directly or indirectly,
the other person or anyone know to them;
(c) besetting or watching the dwelling-house, or place where the
other person, or anyone known to them, resides, works, carries on business or
happens to be; or
(d) engaging in threatening conduct directed at the other person
or any member of their family.
(3) Every person who contravenes this section is guilty of
(a) an indictable offence and is liable to imprisonment for a
term not exceeding five years; or
(b) an offence punishable on summary conviction."
On May 6th, 1993, during
debate on second reading of the Bill, the Minister of Justice described the
background to the legislation, as well as its intended scope, in these words:[95]
"Bill C-126 will introduce a new criminal harassment section to the
Criminal Code. The new section is
called criminal harassment because we believe this best describes the nature of
the crime although the acts are more commonly known as stalking.
More and more cases are being reported of women being stalked by men
they used to be involved with and from whom they may be trying to escape.
There have been several cases in Canada recently in which women have
been stalked and seriously injured or killed.
These cases made it clear that a new provision in the Criminal Code was
urgently needed to explicitly criminalize these types of acts.
A recent public opinion survey shows that more than eight in ten
Canadians would support a law that would prohibit the persistent harassment and
intimidation of another person.
What is commonly called stalking includes such things as repeatedly
following someone; spending extended periods of time watching someone's home or
place of work; making repeated telephone calls to someone or her friends;
making contact with someone's neighbours or co-workers; and contacting and
possibly threatening someone's new companion, spouse or children. Any or all of these actions result in the
causing of fear for safety.
To a certain extent several sections in the Criminal Code already cover
the behaviour involved in these cases.
These current provisions have been criticized by victims and various
groups for several reasons, such as difficulty of proof and inadequacy of
coverage. The offence proposed in the
bill addresses these concerns.
.....
I believe we have created a new offence that will capture the sort of
behaviour that we, as a society, want to prevent without interfering
unjustifiably with anyone's rights or freedoms as guaranteed under the Charter.
Undoubtedly, people have the right to move about freely and to
communicate freely. But no one has the
right to deliberately harass another person in a way that causes the other
person to fear for their safety. The
bill makes a clear statement that this is a crime."
Two issues immediately
arise from this legislative history.
Will the legislation be effective if it requires the Crown to establish
that the perpetrator intended to harass the victim, rather than
requiring the Crown to show that he or she intended to commit certain
acts? Second, the Bill had an objective
test: was the fear of the victim "reasonable"? By what standard? And on the basis of what facts or information?
Attorneys General
subsequently expressed concern that the legislation would not deal adequately
with the problem of stalking. It was
too narrow, they said. Other groups
protested that the legislation was too broad.
A legislative committee was struck to consider the Bill. In May and June, 1993 the Committee met on
five occasions, and heard witnesses representing 19 different groups. On May 27, 1993, it heard the evidence of three
witnesses: the Ontario Minister
responsible for Women's Issues and Attorney General, the Honourable Marion
Boyd, a representative from the Canadian Bar Association, Michelle Fuerst, and
the Assistant Deputy Attorney General for the Province of Manitoba, Stuart
Whitley.
The Attorney General of
Ontario commenced her testimony by making the following observations:[96]
"To illustrate why I believe further discussions are required, I
have a number of comments and specific suggestions as to the ways in which
clause 2 can be substantially improved.
Before discussing the specific amendments I am proposing, I would like
to make some comments about the context within which women experience criminal
harassment.
This legislation must be informed by the reality of women's lives. The control many men wield over women's
lives must be seen on a continuum.
Control through persistent harassment of women has often been labelled
excessive expressions of love, or just the obsessive behaviour of ex-partners
or spurned lovers. These forms of
harassment, however, at the very least, poison women's lives on a daily basis
by inhibiting their movement and removing any sense of security and control
over their own lives."
She had three principal
concerns respecting the Bill. First, it
lacked a preamble which could contextualize the reality of women's experience
in this area, and in the area of criminal law generally. Second, she expressed the view that the Bill
set an unrealistically high standard for successful prosecution because it
required the Crown to prove that the accused specifically intended to harass
the victim, or was reckless as to that fact.
On this point, she said:[97]
". . . as drafted, the Crown must prove a subjective state of mind
on the part of the accused. The
inclusion of the recklessness component to this offence does not alleviate this
problem. It too contemplates a
subjective state of mind. This
requirement fails to realize the reality of the crime. Many men who engage intentionally in the
type of conduct set out in proposed subsection 264.(2) do not believe they are
harassing the object of their intentions.
They often explain their actions as the expression of love or concern
for the safety of the victim and her, and perhaps his, children or concern for
the protection of their property. This
is the main reason why the proposed offence is little or no better than the
existing Criminal Code offence of intimidation, section 423, which also
includes a specific intent that has proved virtually impossible to successfully
prosecute."
Finally, the Attorney
General said that the "reasonableness" component of the legislation
was "an invitation to thwart the intent of the legislation:"[98]
"Woman have complained that their concerns and fears are often
trivialized by police and other actors in the criminal justice system as
paranoid and histrionic. The inclusion
of an objective component in this provision will perpetuate this insidious
ethos. A reasonableness standard will
also have the effect of shifting the focus of the inquiry onto the victim's
character and background. Our
experience in the field of sexual assault has demonstrated that this type of
systemic dynamic removes the faith of women in the criminal justice
system. The government should build on
this experience and recognize that the reasonableness requirement is
undesirable and should be removed."
The Chair of the Criminal
Justice Section of the Canadian Bar Association testified next. She made two points. First, inclusion of the term "harass"
made the section overly broad.
"Harass," she said, included any behaviour that was
"annoying". Second, while the
reasonableness standard should remain, it should not be assessed from a
strictly male perspective. When asked
how the test could be broadened to include the experience of women, she said:[99]
"I think one thing you could do is to say "to reasonably fear
in all of the circumstances", for example. One of the circumstances, of course, is the gender of the
complainant or victim. Another of the
circumstances is going to be the history of the relations between the
parties. I think you can perhaps build
some wording into the section while leaving the reasonableness
requirement."
The final witness was the
Assistant Deputy Attorney General of Manitoba.
In opening comments, he observed that "in the past two months, six
people have been murdered in Manitoba and one is nearly dead as a result of
stalking behaviour reaching its gruesome
extreme." His evidence
focussed on two issues: the need to
intervene quickly, and the ability to prosecute even where the accused
contended that he did not intend to harm the victim:[100]
"What we want as law enforcement officials is the ability to
intervene quickly and early. At that
level the accused is likely to respond that harassment is the furthest thing
from his mind. In other words, if we,
through the police, intervene with an individual, he will not say anything
close to what the proposed legislation suggests we need. He will say that he loves her, that she is
the only one for him, that he can't live without her, or that he is just
looking after her, making sure she doesn't hang out with the wrong types. All the kinds of bizarre, morbid, obsessive
behaviour that we see is in the accused's mind well intended and not criminally
intended and certainly not intended to cause fear. We feel this insistence of the federal government on a specific
intent or at least an adverting to the risk that's required in recklessness may
defeat the social purposes of the law."
The legislative committee
subsequently reported Bill C-126 back to the House of Commons with amendments
on June 3, 1993 and, after passage at third reading, the Bill was sent to the
Senate for its consideration. The
Senate reported the Bill without amendment on June 22, and Bill C-126 received
Royal Assent on June 23, 1993.[101]
Two pivotal changes were
incorporated into the Bill. First, it
was no longer necessary to show that
the accused intended to harass the victim.
It was sufficient to show that the accused knew that the victim was
being harassed, or that he(she) was reckless as to whether the victim was being
harassed. Second, the objective test
respecting the victim's fear was to be measured against "all of the
circumstances" of the case. Both
of these amendments reflected views expressed before the Legislative
Committee: the changes respecting
intent arguably respond to concerns expressed by Ontario and Manitoba, and the
changes to the reasonableness standard not only reflected Canadian Bar
Association concerns but they adopted the Association's suggested wording
verbatim.
c) Elements of the Legislation
In the preceding parts of
this article, I have outlined some of the legal, political and social factors
that helped shape Canada's anti-stalking law.
Against that backdrop, it seems evident that s. 264 of the Criminal Code
raises several important interpretive issues.
They can be grouped as follows:
i) Engage in (specified) conduct;
ii) That causes the (other person/victim), reasonably, and in
all the circumstances, to fear for their safety;
iii) Knowing/reckless
that the other person is harassed;
iv) Without
lawful authority;
v) Repeatedly
following (the victim) from place to place;
vi) Repeatedly
communicating (with the victim);
vii) Besetting or watching the dwelling house or place of work (of
the victim);
viii) Engaging
in threatening conduct.
i) Engage
in (specified) conduct
Under subsection 264(1) of the Criminal Code, it is an offence to
engage in harassing conduct as defined in subsection (2). Two further elements must be present: the accused must have known that the victim
was being harassed (or be reckless in that respect), and the circumstances must
have been such that the victim reasonably feared for his or her safety or the
safety of anyone known to them.
The scheme of this provision lends itself to several immediate
conclusions. First, and most
importantly, the scope of activity sought to be prohibited by the section is
not open-ended. It is expressly
confined to those activities listed in subsection (2) (repeatedly following or
communicating, besetting the dwelling house of the victim, etc.). This may be contrasted with the U.S. Model
Code, where it was concluded by the Task Force on stalking that legislation
should not list specifically prohibited acts "because ingenuity on
the part of an alleged stalker should not permit him to skirt the law".[102]
Whether and to what extent the legislation requires a course of conduct,[103] or repeated acts,
therefore, falls to a consideration of the particular paragraph in subsection
(2), discussed infra. Some are
clear, such as paragraphs (a) and (b), which prohibit "repeatedly"
following or communicating with the victim.
Others are less clear, such as paragraph (c) which lists
"watching" a dwelling house, and paragraph (d) which prohibits
"engaging in threatening conduct".
It also seems apparent that the Crown's evidence need not establish more
than one of the classes or categories of conduct referred to in subsection
(2). On this basis, therefore, it is
sufficient to show that the accused repeatedly followed the victim, or
engaged in threatening conduct, or repeatedly communicated with the
victim. As an example, evidence which
demonstrates that the accused telephoned the victim "again and again"[104] will support a conviction
providing that the other elements of the offence, such as the intent of the
accused and the causing of fear, are also established in evidence.
ii) That causes the victim, reasonably, and in all the
circumstances, to fear for their safety.
This phrase establishes both a subjective and an objective test: did the victim fear for his or her safety
(or the safety of someone known to the victim), and was that fear a
reasonable one in all the circumstances?
These twin elements are pivotal, for the statute criminalizes behaviour
that could otherwise be quite legitimate based on the fact that the accused's
conduct induced a fear for personal safety.
At the outset, it should be observed that predicate conduct (such as a
threat) that does not generate fear on the part of the victim, or does
not come to the attention of the victim, will not support conviction under this
section. The case of Roberto Alomar, a baseball
player with the Toronto Blue Jays, provides a good illustration of this[105].
A 31 year old Alomar "fan", Tricia Miller, travelled to
Toronto and stayed at the SkyDome Hotel, where the star player lived during the
baseball season. Over a period of
several days, she endeavored without success to contact him by telephoning his
room on a number of occasions. She also
sent a package of gifts to his room. No
response from Alomar. Frustrated in her
attempt to "develop a relationship," Miller finally turned herself in
to authorities, admitting that she had intended to kill Alomar, then commit
suicide. She had possession of a loaded
revolver, which was cocked and ready to be fired.
Although Miller was charged with several firearms offences, and uttering
a threat, a stalking count was not laid.
Under the law as presently framed, it is immaterial whether the victim
knew that he or she was being threatened on a charge of uttering,[106] but knowledge of the
threat and the resultant fear for safety form essential elements in a
prosecution for criminal harassment.
The level of fear induced by the accused is also an important
element of the offence. Acts which are
simply annoying or which cause emotional distress are probably not enough.[107] On the other hand, it is not necessary for the evidence to rise
to the level required in the U.S. Model Code:
namely, a fear of death or bodily injury. Conduct in between can suffice.
For instance, fear that the stalking may lead to a sexual assault almost
certainly will be sufficient.[108] So will fear by the victim of the prospects of a hostage-taking,
kidnapping or child-trafficking, even though the latter is not, at the moment,
a criminal offence.[109] The key here is whether the victim fears for his or her
"safety", or the safety of anyone known to them.[110]
Where the "fears for the safety" element is satisfied, the
court must next consider the second issue:
was the fear reasonable in all the circumstances? This test is an objective one, and should
serve to exclude from consideration fears that are imaginary, or arise from a
sense of paranoia, as well as those which are based entirely on trivial matters
or facts which simply did not exist.
The court should, however, be vigilant to ensure that the test of
reasonableness is not applied from a purely male or traditional
perspective. That was the point made
during the Legislative Committee hearings that resulted in the addition of the
words "in all the circumstances" to the original Bill.[111]
The decision respecting "reasonableness" must have regard to
the whole of the circumstances of the case, and could in individual cases
include:
¨ the
specific behaviour of the accused, placed into its proper context;
¨ whether
the accused and the victim previously had had a relationship and, if they had,
the nature and history of that relationship;
¨ any
obvious power imbalance between the accused and the victim;
¨ what
the victim perceived, given his or her situation and experience in life;[112]
¨ expert evidence concerning the nature of stalking: "(Stalkers) may be obsessive,
unpredictable and potentially violent.
They often commit a series of increasingly serious acts, which may
become suddenly violent, and result in the victim's injury or death."[113]
iii) Knowing/reckless
that the Other Person is Harassed
Anti-stalking statutes, almost by definition, are vulnerable to
constitutional attack on the basis that they are overbroad because they sweep
innocent and acceptable conduct into their net of culpability.[114] The challenge to the legislative draftsperson, and ultimately to
legislators,[115] is to craft a law that
does not focus simply on the conduct of the accused (such as following
someone): it must incorporate,
additionally, an element or elements that demonstrate the sinister nature of
the prohibited act, and the circumstances that instill fear in the victim.
That is precisely what section 264 of the Criminal Code seeks to
do. It prohibits certain conduct, such
as following someone or repeatedly communicating with them. However, it incorporates three further
elements of proof to ensure that the "morally innocent"[116] fall outside of its
provisions: the accused must have known
of or be reckless to the fact that the victim was being "harassed";
the conduct must have caused fear in the victim; and the accused must have had
no lawful authority for what he or she did.
During the course of this article, I will consider each of these three
elements of proof. Before doing that,
however, it is important to consider the legislative history of this particular
aspect of section 264.
(a)
Legislative History
Section 264 requires the Crown to prove that the accused knew
that the victim was being harassed, or was "reckless" to that
fact. The original Bill was cast
somewhat differently on this point.[117] It proposed that the Crown establish that the accused intended
to harass the victim or was reckless as to whether the victim was being
harassed. The difference, at least on
the "no intent" prong, is slight, but potentially significant: Stalkers often suffer under a delusion that
the victim is in love with him or that, if properly pursued,
the victim will begin to love him. Subjectively, the accused may not actually intend
to cause fear and in that sense intend to "harass"; instead, he may
simply intend to establish a relationship with the victim.[118] As one accused defiantly screamed across the Old Bailey courtroom
a few years ago: "I am not guilty of murder, I am guilty of love."[119]
Under the legislation as passed, it is sufficient to show that the
accused knew that he or she was undertaking conduct that objectively was
harassment in the circumstances -- by, for instance, repeatedly following the
victim. On this basis, the conclusion
by the accused that he only loved the victim and would never hurt her would not
serve to act as a bar to prosecution.
That conclusion, however, if established in evidence, could have defeated
charges laid under the original Bill, as that proposed legislation would have
required evidence showing an intention to harass, rather than simple knowledge
of the facts constituting the harassment.
The mental element's "lowest common denominator", however,
"recklessness", remained a constant in both Bills.[120] The change from "intend" to "knowing" may
therefore be more illusory in practice than it is real. Though it remains to be seen as the case law
develops, it is entirely possible that most cases will turn on whether recklessness
is demonstrated by the evidence.
All of this begs the two main questions, however: What amounts to harassment? And what amounts to recklessness?
(b)
Harassment
Unlike several American anti-stalking statutes,[121] the term
"harass(ed)" is left undefined in the Criminal Code. In general, the ordinary meaning of a word
should be used to interpret a statute unless there is something in the object
of the Act or the context in which the words are used, that suggests otherwise.[122] There is, in my view, nothing in section 264 that suggests that
the word "harass" ought to be given anything other than its normal
meaning. In Webster's Dictionary,[123] harass is defined as
"to annoy persistently". In
Black's Law Dictionary,[124] harassment is said to be
used in a variety of legal contexts to describe words, gestures and actions
which tend to annoy, alarm and abuse (verbally) another person.
In a similar vein, under subsection 372(3)of the Criminal Code,
which prohibits harassing telephone calls, the New Brunswick Court of Queen's
Bench held in the context of repeated telephone calls that the term
"harassing" is synonymous with annoying.[125]
On this basis, therefore, the Crown is required to demonstrate that the
accused undertook one of the actions enumerated in subsection (2) in a way that
was, in fact, persistently annoying and instilled fear in the victim. In most cases, proof that the acts caused
fear will, at the same time, satisfy the "persistently annoying"
element as well.
c)
Recklessness
The concept of recklessness has been defined by the Supreme Court of
Canada in the following way:[126]
"[Recklessness] is found in the attitude of
one who, aware that there is danger that his conduct could bring about the
result prohibited by the criminal law, nevertheless persists, despite the
risk. It is, in other words, the
conduct of one who sees the risk and who takes the chance."
However, the Court went on to note that "recklessness" should
be distinguished from mere negligence ("the failure to take reasonable
care"), the latter being a creature of the civil law that "forms no
basis for the imposition of criminal penalties".[127]
Inclusion of "recklessness" as a basis for criminal liability
under section 264 may be subject to attack on the grounds that it establishes a
constitutionally insufficient mental element.[128] Decisions from the Supreme Court, however, strongly suggest that
the section is, at least on this issue, constitutionally secure,[129] and it is perhaps not
insignificant to observe that a number of other offences in the Criminal
Code similarly describe twin mental elements, such as
intentionally/recklessly,[130] wanton/reckless disregard,[131] causing an
occurrence/being reckless whether the event occurs,[132] wilfully blind/reckless,[133] means to cause death/reckless
on the issue.[134]
In practice, the Crown will usually seek to establish the mental element
through evidence demonstrating that the accused knew that the victim was
being harassed, at least in the case of sociopathic stalkers and former intimate
stalkers. However, resort may have to
be made to the "recklessly" prong of the mental element in the case
of delusional or borderline erotomaniacs, where the stalker has developed a
fixation, and contends that the object of the activity was to establish a
"loving" relationship with the victim.[135]
iv) Without
lawful authority
A "lawful authority" exclusion from criminal liability is
necessary to prevent anti-stalking laws from being overbroad.[136] Without this type of exclusion the legislation could and almost
certainly would sweep into its net a range of activities that by almost any
standard are appropriate, if not necessary in the public interest.
Consider the following scenarios:
police investigators repeatedly follow a suspected drug trafficker from
place to place, knowing that he suspects police surveillance, and under
circumstances that could later expose him, if convicted, to a substantial term
in prison. As a consequence, the
suspect fears for his liberty. A
process server seeks to locate and serve a subpoena on a witness to a crime,
knowing that the witness is reluctant to testify for fear of retaliation by the
accused or his associates. Other
examples go beyond the criminal justice system: consider the licensed private investigator who conducts daily
surveillance on an unfaithful spouse for the purpose of gathering evidence to
support divorce proceedings[137]. Or the unlicensed insurance investigator who relentlessly pursues
a suspected malingerer over a period of several weeks. Collection agencies routinely follow evasive
debtors, many of whom fear the consequences of detection. And finally, consider the citizen who
pursues a drunk driver down the highway with the intention of filing a report
with the police; or the citizen's advocacy group that posts handbills on
neighborhood telephone poles that describe and illustrate the "ten most
wanted fugitives" in the community.
Each of these scenarios involves the pursuit of someone who has breached
a criminal or civil law or standard.
What are the criteria by which one determines if the "lawful
authority" exception is triggered?
Is there a difference between activities that some may consider "legitimate",
on the one hand, and those that carry some form of lawful authority on the other?
It should be observed that the section does not refer to a lawful
"excuse". Nor does it say
lawful "justification". It
requires the demonstration of some sort of lawful "authority". Cast in common law terms, the provision
requires an "authorization by law".[138] In a practical sense, this probably means that before this can be
raised as a defence the evidence must show that the accused acted pursuant to
or in accordance with some principle of law -- either statutory (federal,
provincial or municipal), or under the common law.[139]
Additionally, when raised, the fundamental question is not whether one
part of the accused's conduct, if considered in isolation, might be said to be
authorized by law; rather the court must consider whether the accused's course
of conduct, considered in its entirety, was authorized by law.[140] The defence of lawful authority only arises as a potential issue
once the Crown has first proved the actus reus and mens rea
beyond a reasonable doubt.[141] The "lawful authority" does not, therefore, refer to or
tend to disprove an element of the offence; rather, it refers to "matters
which stand outside the requirements which must be met".[142] Accordingly, if the accused wishes to raise the defence of lawful
authority, the burden of proving the defence rests upon the accused on a
balance of probabilites.[143]
In practice, the Court will rarely reach this issue.[144] The Crown must prove its case.
This means that the evidence must demonstrate that the accused knowingly
"harassed" someone else or was reckless as to whether the other
person was being harassed. The case
must also show that, as a consequence, the target reasonably feared for
his or her safety. These are pivotal
issues which, if proven, will in most cases tend to show that the accused
lacked a "lawful authority" to begin with.
There is one major exception:
the prosecution of a police officer or other person involved in the law
enforcement process. In some of these
cases, the central issue will be whether the accused was really enforcing the
law as a peace officer, or whether he or she was on a personal but unlawful
"frolic". Evidence detailing
the nature of the relationship, if any, between the accused and the victim will
be relevant, as will evidence showing whether the accused followed
"normal" police practice in the pursuit of the victim -- such as
preparing reports on the surveillance; reporting to superiors on the case;
disclosing facts on the surveillance; seeking legal advice, and so on.
v) Repeatedly
Following the Victim From Place to Place
The first conduct referred to in subsection 264(2) consists of
repeatedly following from place to place the other person or anyone known to
them. This is the classic and most
common form of stalking behaviour.
Several points should be made.
First, a course of conduct is clearly required. It is not sufficient to follow someone once,
although evidence of a single following if coupled with other forms of impugned
conduct, such as repeatedly communicating with the victim, may support
conviction. Use of the word
"repeatedly" suggests that the following must occur "again and
again",[145] although no minimum number
of occurrences is prescribed by the legislation.[146]
Second, the "following" must be from one "place" to another. In the context of the words used in the
section, this probably means from one location to another, avoiding the
controversy over whether a "place" can be a public street or other
public place.[147]
Third, the conduct proscribed by the legislation encompasses not just
the following of the victim, but anyone known to the victim as well[148]. This contrasts with paragraph (d), concerning threatening
conduct, which is confined to the victim or any member of the victim's family.
Finally, this provision is probably derived from paragraph 423(1)(c) of
the Criminal Code (Intimidation), which traces its Canadian roots back
to the original 1892 Criminal Code, and earlier to 1875 in England.[149] However, most of the case law that has developed under these
provisions, both in England and in Canada, concerned picketing in labour
disputes and is of questionable value in interpreting section 264.[150]
vi) Repeatedly
Communicating (with the Victim)
Paragraph 264(2)(b) targets stalkers who repeatedly communicate with,
either directly or indirectly, the victim or anyone known to the victim.
Some of the same considerations that arise in the case of
"following" apply here. A
course of conduct is required in the sense that the accused must be shown to
have communicated "again and again"; as well, the communication can
be with the victim, family members or other persons simply known to the victim.
However, two further points arise.
The term "communicate", defined to mean the "transmission
of information, thought or feeling so that it is satisfactorily received or
understood",[151] has the potential to
embrace a wide variety of methods of communication: for instance, by letter,[152] note, telephone, fax,
e-mail,[153] computer,[154] by posting signs or
notices,[155] and in person orally, or
by making gestures,[156] signs and so on.
To the extent that a communication simply includes the transmission of a
thought or feeling that is satisfactorily received or understood, the section
could also contemplate more subtle forms of communication such as leaving a
dead animal on the victim's doorstep, or repeatedly sending unwanted
gifts. In these latter cases, however,
the acts may be closer to "threatening conduct" under paragraph (d),
than a communication under (b). And in
these cases the meaning of the act, if viewed as a communication, its context,
as well as its authorship, will often be pivotal issues at trial. The communication can also take place indirectly
with the victim or another person.
Thus, the accused could be guilty of
transmitting a message to the victim through an innocent third party
such as a friend, relative or co-worker.
vii) Besetting or Watching a Dwelling-House or
Place of Work
Paragraph 264(2)(c) denounces the predatory behaviour of besetting or
watching the victim's dwelling house or place of work, as well as that of
anyone who is know to the victim.[157] It tracks, virtually verbatim, the provisions of paragraph
423(1)(f) of the Criminal Code respecting intimidation, which in turn
traces its Canadian roots to the original Criminal Code of 1892,[158] and earlier to a
legislative prototype enacted by the Parliament at Westminster in 1875.[159]
In practice, this statutory provision, both in England and in Canada,
was restricted almost entirely to the control of trade disputes, particularly
strikes, although facially it is much wider than that.[160] Consequently, the case law that developed over the years in
connection with the offence of intimidation is of limited assistance. A few cases are, however, helpful in
understanding certain elements of section 264.
The purpose of the accused in watching or besetting is an essential
ingredient of the offence. Of course,
"purpose" can rarely be proven by direct evidence, and in most
situations will be established, if at all, by inferences from the
circumstances.[161] Additionally, if the circumstances, although they are consistent
with the purpose alleged by the Crown, are also consistent with another purpose
which is innocent in nature, there can be no conviction, even though the
watching and besetting is amply proved.[162]
A threshold question arises under paragraph 264(2)(c): Is it necessary for the Crown to establish a
course of conduct by the accused, or will a single act of besetting or watching
suffice? Paragraphs (a) and (b) clearly
require a course of conduct. And for
reasons that will be outlined later on, paragraph (d) probably does as well. The issue is far from clear, however, in the
case of watching or besetting.
The ordinary meaning of "beset" is: "constantly present; or attacking". That tends to suggest a course of
conduct. Alternatively, the accused
must have been "watching".
That is defined as "keeping a vigil, or keeping someone under close
supervision". That does not
necessarily suggest a course of action.
Resort to the terms "dwelling house", "resides",
"works", or "carries on business", all suggest some
elements of permanence or changelessness in the target location, though not
necessarily a course of conduct by the accused. The final element, however, "or happens to be",
suggests neither permanence nor a course of conduct.[163]
There are two final considerations respecting the "course of
conduct" issue: all of the
activities referred to in subsection (2) are modified or at least qualified by
the phrase "engage in conduct" in subsection (1). "Engage" is neutral on the issue,
simply meaning "to take part, participate". "Conduct", however, is defined by the authorities to
mean "the act, manner, or process of carrying on",[164] suggesting an ongoing
process.
As well, it is a rule of statutory interpretation that words which are
coupled together "take their color from each other. That is, the more general is restricted to a
sense analogous to the less general.[165] Paragraphs (a) and (b) concerning repeatedly following or
communicating with the victim clearly involve a course of conduct and paragraph
(d) concerning threatening behaviour probably does as well.[166] This legislative context lends at least some support to the
"course of conduct" interpretation.
In my view, the language used in paragraph 264(2)(c), the legislative
context in which the words are used, the object of the legislation, and the
"coloring" process referred to by the cases, tend to suggest that a
single occurrence is insufficient, and that the Crown must demonstrate some
sort of course of conduct which, when taken as a whole, amounts to besetting or
watching. The issue is far from clear,
however, and the case for requiring a course of conduct is probably weakest
under this paragraph.
What does all of this mean in practical terms? If the accused stops in front of his ex-wife's house on a single
occasion and from the sidewalk looks through a window for a few minutes, that
is probably not enough in itself to support a conviction under this
paragraph. If he does the same thing
from a few feet away from the house, the same conclusion should probably be
reached providing that he doesn't do anything to trigger another provision of
the legislation, such as repeatedly making a threatening gesture. However, doing the same thing several times
during the same day, or over a period of several days, could result in a
conviction.
The same applies at the victim's place of work. A single act, even if bizarre, will not
attract liability under this paragraph.
In the result, the risk of a finding of culpability increases with the
frequency of contact, particularly where the circumstances are such that it
could be seen as threatening in nature.
Trite though it may be to say, culpability under this paragraph will be
very much rooted in the facts of individual cases. For this reason, it is difficult to paint scenarios that will in
all instances be either criminal or non-criminal.
viii) Engaging
in Threatening Conduct
The final predicate conduct referred to in subsection (2) consists of
engaging in threatening conduct directed at the victim or any member of his or
her family. Three principal issues
arise: What amounts to a threat? Is a single threat sufficient, or is a
course of conduct required? And who is
in the circle of protected persons?
(a) What
is a Threat?
In 1994, the Supreme Court of Canada accepted as useful the following
definition of the term "threat"[167]:
"A denunciation to a person of ill to
befall him; especially a declaration of hostile determination or of loss, pain,
punishment, or damage to be inflicted in retribution for or conditionally upon
some course; a menace."
Earlier case law emphasized three points concerning the concept of a
threat. First, the threat (a term often
used interchangeably with "menace")[168] must be such as would be
reasonably calculated to overcome the will of a man of "ordinarily firm
mind".[169] Put another way, "It is of the very essence of a threat that
it should be made for the purpose of intimidating or overcoming the will of the
person to whom it is addressed.[170]
Second, the test is the nature of the conduct said to amount to a
threat, not the state of nerves of the person threatened.[171] Finally, the issue of whether a threat occurred ought to be left
to the jury for decision, as it is fundamentally a question of fact to be
determined in light of all the circumstances and the context in which the
utterance or conduct took place.[172]
In 1914, Lord Reading, C.J., after examining the earlier authorities,
summed up the law in the following way:[173]
"The degree of fear or alarm which a threat
may be calculated to produce upon the mind of the person on whom it is intended
to operate may vary in different cases and in different circumstances. A threat to injure a man's property may be
more serious to him and have a greater effect upon his mind than a threat of
physical violence. When there is
evidence of such a threat as is calculated to operate upon the mind of a person
of ordinary firm mind, and the jury had been properly directed, it is for them
to determine whether in fact the conduct of the accused has brought him within
the section and whether in the particular case the "menace" is
established. If the threat is of such a
character that it is not calculated to deprive any person of reasonably sound
or ordinarily firm mind of the free and voluntary action of his mind, it would
not be a "menace" within the meaning of the section. In our judgment, when a man, with intent to
steal, threatens either to do violence to the person of another or to commit
acts calculated to injure the property or character of another, it is a
"menace" within the meaning of the section."
In recent years, the Supreme Court of Canada, in a trilogy of cases[174] has further refined the
concept of the criminal "threat".
The act of threatening, the Court concluded, permits a person uttering
the threat to use intimidation to achieve his or her objectives.[175] The threat need not, however, actually be carried out: the offence is complete once the threat has
been made.[176]
A threat is a tool of intimidation which is designed to instill a sense
of fear in its recipient.[177] The purpose of prohibitory legislation is, therefore, to protect
against that sort of fear and intimidation.[178] In enacting legislation, Parliament was moving to protect
personal freedom of choice and action, a matter of fundamental importance to
members of a democratic society.[179]
The nature of the threat must be looked at objectively, as it would be
by the ordinary reasonable person, and within the context of all of the written
words, conversations or actions in which they occurred.[180]
To be culpable, the threat must have been intended to be taken
seriously.[181] And, consistent with the proposition that the context in which
the words are spoken are important, the threat need not employ the traditional
legal language of the Criminal Code.
It is sufficient for the accused to have described the threat in the
language of the street.[182]
(b) Is a
Course of Conduct Required?
Is a single threat sufficient to trigger application of paragraph
264(2)(d), or is it necessary to show that the accused undertook a course of
action which, when taken as a whole, amounted to threatening conduct?
The operative phrase in the paragraph
is: "engaging in
threatening conduct". The word
"engaging" is neutral on the issue, simply meaning "to take part;
participate".[183] The word "threatening", by itself, is neutral as well,
for, as discussed above, a threat can involve a single event or a series of
incidents. The phrase threatening conduct,
however, does tend to suggest more than one incident: "Conduct" by itself is defined to mean "the act,
manner or process of carrying on.[184] And, as noted earlier, use of the words "engage in
conduct" in subsection 264(1), which colors the paragraphs that follow,
likewise tends to suggest the need to show a course of conduct. Finally, section 264 can usefully be
contrasted with other provisions in the Criminal Code that mention
threats. Section 423 prohibits anyone
who "uses . . . threats of violence . . ." or "intimidates . . .
by threats". Section 264.1
provides that "everyone commits an offence who . . . causes any person to
receive a threat . . ." Likewise,
section 346 establishes the offence of extortion in the following words: "Everyone commits extortion who . . . with intent to obtain
anything by threats, accusations, menaces . . . etc." Each of these provisions tends to suggest
that proof of a single threat will suffice, as will multiple threats. None refer to "conduct", or the
need to establish "threatening conduct".
The language used in paragraph 264(2)(d), the legislative context in
which those words are used, the object of the legislation and the
"coloring" principles referred to earlier[185] all tend to suggest that a
single threat is insufficient, and that the Crown must show that the accused
undertook a course of action which, when taken as a whole, amounted to
threatening conduct.
(c) Who
Is In The Circle of Protected Persons?
It is significant to note that paragraphs (a), (b) and (c), respecting following,
communicating and besetting, respectively, describe conduct by the accused
which is directed at either the victim or "anyone known to
them". This could include friends
of the victim, co-workers or members of the victim's family, amongst others.[186]
Paragraph (d), however, draws the net of protection much tighter. Only members of the victim's family fall
into the protected category. The
rationale for this policy shift is quite unclear and, at least on its face,
seems somewhat inconsistent with the overall intent of the legislation.[187]
Concluding Remarks
In this article, I have sought to show several things. First, the peculiar -- if not unique --
nature of stalking as a form of human behaviour. In my view, two characteristics are pivotal.
Fundamentally, stalking is predatory in nature. The stalker focusses his or her activities
on a single individual. This obsessive
behaviour can last a short time -- a few days perhaps -- but more commonly will
extend over weeks, months or even years.
Persons targetted often find it necessary to change their entire
lifestyle, such as where they work, reside, when they leave for work, return
home, where they shop, and so on. The
persistence of the stalker's conduct when coupled with its predatory nature
makes stalking a particularly insidious form of conduct[188]. One stalking victim aptly described the resulting fear in this
way:[189]
"It's the nights that are the worst. I don't know where he is, but my imagination
tells me he is close at hand. In
daylight I can keep the fears down; at night I am alone with the terror that he
has created. If he rings me every ten
minutes I think I will go mad with it; if he does not ring, I worry that he is
outside, watching me."
A second characteristic of stalking adds to its uniqueness: the perpetrator usually undertakes, over a
period time, a series of increasingly more serious acts which escalate the
level of threat and the victim's level of fear. Stalkers often start with a relatively innocuous act; sending
gifts and flowers, for instance. The
gifts may be unwanted, but they are not particularly threatening and in the
early stages they may even be considered somewhat flattering. Over time, however, and with the development
of an obsession or fixation, the activities escalate and so does the level of
threat. The victim may start to be
followed or repeatedly telephoned.
Comments and conduct evidencing the obsessive thoughts of the stalker
are often conveyed to the victim. Fear
starts to set in. Threat escalation
thus forms a "hallmark" of stalking.
And in some cases, the escalation factor quickly moves the situation
from the level of a simple nuisance to a life-threatening attitude of, "If
I can't have you, nobody will".
Having described the principal characteristics that set stalking apart
from other forms of human behaviour, I next sought to place stalking within its
proper legal context.
Historically, stalking was never considered a crime; to many, it amounted
to nothing more than a series of acts which, though annoying and provoking,
were perfectly lawful if not quite acceptable.
At worst, some elements of stalking were considered a precursor to
another crime or, in some cases, evidence of its mens rea. The main control mechanism was Sureties
of the Peace. But the burden of proof
on the applicant victim was high, and few victims were given real protection in
any event.
As Canada approached the 21st century, and a wave of protective legislation
swept across the United States, innovative prosecutors in Canada and a
receptive appellate judiciary sought to control stalking through "last
resort" legal mechanisms, such as prosecutions for "threatening"
contrary to section 264.1 of the Criminal Code.[190] Mechanisms of this sort did not, however, treat stalking as a
form of culpable behaviour: rather,
prosecutors sought to denounce the conduct by focussing on one element
of the conduct (usually a threat or an assault). When this element was not present, and the behavior sought to be
controlled consisted simply of harassing conduct and the resultant fear of
bodily harm, the law failed miserably.
In early 1993, the federal cabinet instructed development of legislation
to deal specifically with stalking.
That initiative later found expression in a Bill tabled in the House of
Commons the following spring, which passed and was proclaimed in force during the summer of 1993.[191]
I have taken some time, hopefully not too much, to describe some of the broader
social, cultural, and political forces that have helped shape the law in this
area. I have also discussed the
elements which I believe need to be established by the Crown in a prosecution
under this legislation. To be sure, the
"criminal harassment" provision of the Criminal Code contains a myriad of difficult
interpretive and constitutional issues.
Thus far, trial courts, at least, have endeavoured to breathe life into
the legislation by avoiding a restrictive interpretation,[192] and by supporting its
constitutional validity.[193] Whether and to what extent appellate courts will continue this
approach remains to be seen.
What I have said so far describes where we have been in the past and
where we are right now. I propose at
this stage to comment briefly on where we can go from here.
Now that Canada has recognized that stalking, as a form of human
behaviour, is a crime, we need to turn our attention to the position -- and
plight -- of the victim. Are there
sufficient legal safeguards to protect those who are targetted by a
stalker? Are government files and
databanks potentially fertile fields for those who seek background information
on a potential target? Are there
mechanisms beyond the criminal law that can assist in controlling this type of
threatening conduct?
Several things can be done at the federal, provincial, and municipal
levels of government. Some require
legislation; others require significant administrative or policy shifts. All require consideration of the public resource
implications and the extent to which any principle in the Charter of Rights
and Freedoms may be triggered or violated.
a)
Potential Federal Initiatives
Refinements to further protect the victim are available at both the
front and the back end of the criminal justice system:[194]
i) notify
the victim if the stalker is released on bail or escapes from custody;
ii) require
an alleged stalker, on being charged, to surrender all firearms and Firearm
Acquisition Certificates until the charges are dealt with;
iii) require
the accused to justify release on bail, in much the same way that those who are
charged with drug offences now bear the burden of showing cause for release
(subsection 515(6) Criminal Code);
iv) add
criminal harassment to the list of predicate offences that provide a foundation
for first degree murder irrespective of whether the murder was planned and
deliberate (subsection 231(5) Criminal Code);
v) require
an additional penalty when it is shown that the stalker, during the course of
the offence, violated a protective court order such as a peace bond issued
under section 810 of the Criminal Code, or a restraining order issued
under provincial legislation.
b)
Potential Provincial/Municipal Initiatives
Provincial and municipal governments should consider protective measures
in at least three separate areas.
First, it is apparent that both levels of government maintain personal
databanks designed to support a range of regulatory schemes and social services. Some of these contain information about
individuals that could assist stalkers in locating and tracking their
victims. Examples include: drivers
licence and vehicle registration schemes; land registry systems; tax rolls;
voting records and so on[195]. Government at this level ought to consider whether and under what
circumstances information of this nature ought to be freely available to the
public, especially to those against whom there exists any form of protective or
restraining order.[196]
Provincial governments also have responsibility for administering the
courts and correctional systems.[197] Steps should be taken to ensure that court documents, such as
subpoenas, do not include information which unnecessarily exposes an accused
stalker's victim, such as telephone
numbers and home addresses.[198] In the correctional field, provinces may wish to consider
electronic monitoring bracelets to ensure that court-ordered "no
contact" bail conditions are respected.[199]
(c)
Civil Actions
The physical and psychological damage suffered at the hands of a stalker
may well found a civil action brought by the victim. In the United States, the stalking law enacted in the state of
Oregon specifically provides that a civil action may be brought against the
stalker to recover damages incurred as a result of stalking behaviour.[200]
In Canada, no legislation touches on the issue of civil liability, and
the case law is scant. Judicial authority that does exist, however, tends to
support a role for the civil courts.
In Love v. Blanchard ,[201] the female plaintiff sued
her father for damages for sexual abuse while she was between the ages of six
and sixteen. The defendant father had
previously pleaded guilty to criminal charges laid against him concerning the
abuse. Schulman, J. assessed general
damages at $60,000, but added aggravated damages in a like amount because of,
amongst other things, the "conduct of the defendant who stalked the
plaintiff off and on for about four years after completing his jail sentence".
A year later, in March, 1995, Binks, J. of the Ontario Court of Justice
(General Division) awarded $105,000, including punitive and aggravated damages,
against Anthony B. Buelow for stalking his former wife over a period of several
months.[202] The court found that the defendant had followed his former wife
by car and on foot, had continuously telephoned her during the day and night,
left notes and letters at her house, threw things at her, tacked a used condom
to a wall at her home, videtaped her through her bathroom window from a tree,
and harassed her friends and professional advisors. As in Love v. Blanchard, supra, the defendant had
previously been convicted of criminal charges involving the plaintiff as
victim, including intimidation and trespass by night. In his reasons for judgment, Binks, J. described the former
husband's conduct as "calculated, devilishly creative, and entirely
reprehensible", adding that it "went far beyond the bounds of
civilized behaviour."
(d) An
Uncynical Postscript
Anti-stalking legislation in both Canada and the United States has been
criticized on the basis that legislators hastily responded to a moral panic
created by an exploitive and sensational media.[203] One critic has written:[204]
"In the end, the significant players in the
stalking initiative were differentially rewarded. The media got a good story.
The politicians got a chance to demonstrate publicly their commitment to
the issue of violence against women without the significant expenditures of
time, energy or money required to actually address the roots of the
problem. And Canadian women ended up,
through a process characterized by non-inclusion and non-responsiveness, with a
new piece of criminal law, uncertain in impact and rooted in a failure to appreciate and acknowledge the systemic nature of
violence against women."
Whether there is any merit to this criticism is at best debatable. There are, however, some realities that are
simply beyond dispute: stalking
behaviour has existed for decades, if not centuries. It strikes fear, if not terror, into the hearts of the
victims. Traditional legal mechanisms
failed to deal with this insidious behaviour.
Stalking behaviour usually escalates, and sometimes results in the death
of the victim. Anti-stalking
legislation permits police and judicial intervention before fatal consequences
occur.
We can, if we wish, debate endlessly about the fine points of the
legislation, such as whether the law adequately describes the level of intent required
and whether the "fear" issue ought to be assessed objectively or
subjectively. We could also debate
about whether Parliament moved too quickly, or too slowly for that matter, and
whether there was sufficient consultation with interest groups and other
stakeholders when the legislation was being developed.
The reality is that a control mechanism now exists that didn't exist
before. Men (and some women) are now
being arrested, charged, prosecuted and sentenced for conduct that previously
would have been just as threatening but, in the eyes of the law, would have
gone unnoticed.
The jurisprudential dust should, I think, be allowed to settle before
rushing to the somewhat cynical conclusion that legislators totally missed the
mark in an attempt to gain a good story in the weekend newspaper. I am not at all sure that Patricia Allen
would have agreed with that proposition, if she had survived the attack by her
husband, with a cross-bow, in broad daylight, on a busy Ottawa street after
several months of being stalked. Nor
would Terri-Lyn Babb have agreed. Nor
Sherry Paul, or Colleen Kelly. Or
Maurice Paul, for that matter.
[1] In
recent years, the chronology of events can be summarized in this way. In July, 1990 Charles Robert Kieling was
convicted of several counts of wilfully failing to comply with a probation
order made in 1988. The violations
involved telephoning Anne Murray at her place of work. At trial, Mr. Kieling was fined a total of
$2,000. On appeal, the Court of Queen's
Bench increased the sentence to 60 days imprisonment and further directed that
upon release Mr. Kieling must comply with a probation order. The relevant part of the probation order
read: "The accused will not make
any contact anywhere in Canada or in any other jurisdiction outside of Canada
at any time with Anne Murray or any member of her family including husband,
children, siblings, aunts and uncles, or anyone of any other degree of kinship
under any circumstances whatsoever. The
accused will not phone them, correspond with them by mail, attend at their
place of residence or telephone their place of residence or workplace or
recreation place or any other place in Canada or elsewhere, where they are or
might reasonably be expected to be found for any reason at any time under any
circumstances whether invited by them or otherwise." That order subsequently was breached in
February of 1992 and in July, 1992 Mr. Kieling
once again was convicted of five further counts of attempting to contact
Anne Murray at her workplace. The trial
court's sentence of four months' imprisonment subsequently was increased to
nine months, together with a further order that upon release he comply with a
probation order containing the same terms as before. (Q.B. No. 194/92).
[2] Kathleen
G. McAnaney, Laura A. Curliss and C.E. Abeyta-Price, "From
Imprudence to Crime: Anti-Stalking
Laws", 68 Notre Dame L. Rev. 819 (1993) at p. 821.
[3] Her
murderer, Robert Bardo, not only had followed her for two years, but hired a
detective to get her address, and repeatedly sent her letters and gifts. Subsequent analysts have attributed the
explosion of anti-stalking legislation to the murder of this popular television
actress: Ibid, at p. 821; Mathew J. Gilligan, "Stalking the
Stalker: Developing New Laws to
Thwart Those who Terrorize Others," 27 G.A. L. Rev. 285 (1992);
Robert P. Faulkner and Douglas H. Hsiao, "And Where You Go I'll Follow:
The Constitutionality of Antistalking Laws and Proposed Model Legislation,"
31 Harv. J. on Leg. 1 (1994); Stalkers, by Jean Ritchie (London: Harper
Collins Publishers, 1994), at p. 73 - 77.
Some courts have agreed with this view as well: People v. Payton,
612 N.Y.S. 2d 815 (1994).
[4] This
study was conducted by the National Criminal Justice Association, a Washington,
D.C. based organization, under the direction and oversight of the National
Institute of Justice, the Research and Development Agency of the U.S.
Department of Justice. The United
States Congress had directed the U.S. Attorney General, through the National
Institute of Justice, to develop and distribute among the states a
"constitutional and enforceable" model anti-stalking code. This work was carried out with a project
resource group composed of individuals from the American Bar Association, American
Civil Liberties Union, the Police Executive Research Forum, National District
Attorneys' Association, National Victim Centre, Threat Management Unit of the
Los Angeles Police Department, National Governors' Association, the National
Conference of State Legislatures, individual Prosecutors, Defence Attorneys and
Probation Officers, as well as other public and special interest groups: Project
to Develop a Model Anti-Stalking Code for States, a final summary report
presented to the National Institute of Justice, October, 1993, at p. 40.
[5] Kathleen
G. McAnaney, et al supra, footnote 2 at p. 823, Faulkner, supra,
footnote 3 at p. 4; Stalkers, by Jean Ritchie, supra, at p. 1.
[6] Stalking: The Crossbow Murder Reconsidered, The
Globe and Mail, January 29, 1994 at p. 2, authored by Selwyn M. Smith, a
psychiatrist who was called by the
Crown as the psychiatric expert at the trial of the assailant, Colin
McGregor. Mr. McGregor was found guilty
of first degree murder, and subsequently has brought an appeal against that
conviction to the Ontario Court of Appeal.
[7] (Unrep,
Man. QB, May 30, 1994, Court File CR 93-01-13845). Originally, Bell was charged with first degree murder. That was reduced to second degree by the
Crown on the basis that while the evidence demonstrated elements of stalking,
it did not establish planning and deliberation. The Attorney General of Manitoba subsequently recommended that
stalking (criminal harassment) form one of the predicate offences that could
support a first degree conviction under s.231(5) of the Criminal Code. The Federal Minister of Justice is presently
considering this proposal. See
"Concluding remarks", infra.
[8] The
facts concerning this case are drawn from the report of an inquest held before
Provincial Court Judge C.K. Newcombe pursuant to the Manitoba Fatality
Inquiries Act: "The Fatality Inquiries Act, Findings Relevant to an
Inquiry, dated June 3rd, 1994, released June 8, 1994 (56 pp.).
[9] U.S.
Task Force Report on Stalking, supra, footnote 4 at pp. 1, 46 and 49;
and, generally, see Stalkers, by Jean Ritchie, supra, footnote 3
at pp. 1-16.
[10] McAnaney
et al, supra ,footnote 2
at p. 831; and see Faulkner , supra, footnote 3 at p. 4 et seq.
[12] McAnaney
et al, ibid, p. 832, and see U.S. Task Force Report on Stalking,
supra, footnote 4 at p. 92.
[16] McAnaney
et al, supra, footnote 2, at p. 833-834. The 1993 U.S.Task Force Report on Stalking
said: "The most frequently used
methods of harassment are following, making harassing statements and threats by
phone, sending unwanted letters, vandalism, verbal and physical threats,
showing up at the victim's work place, innocuous phone calls, and
assaults. Other forms may include
sending unwanted gifts, leaving dead animals, making false accusations, and
leaving notes on victims' cars:" supra, footnote 4 at p. 41.
[25] Ibid,
p. 839. Statistics concerning the interrelationship
between domestic violence, stalking, and spousal homicide is unavailable in
Canada at the moment. We do, however,
know this: 29% of women currently or
previously married in Canada have experienced at least one incident of physical
or sexual violence at the hands of a marital partner (Wife Assault: The
Findings of a National Survey, Canadian Centre for Justice Statistics,
Juristat Service Bulletin, Vol. 14, # 9, March, 1994, at p. 4). 39% of all female homicide victims were
killed by their spouse (Homicide in Canada - 1993, Canadian Centre for
Justice Statistics, Statistics Canada, Juristat Service Bulletin, Vol. 14, #
15, August 1994, at p. 13). Fully 43%
of all domestic homicides flowed from previous domestic violence which was known
to police (Homicide in Canada - 1993, supra, at p. 13) and in a
study of the Family Violence Court in Winnipeg, the majority (67%) of spousal
abuse cases involved couples in an ongoing relationship as a marital or common
law partner, or boyfriend/girlfriend (The Winnipeg Family Violence Court,
Juristat Service Bulletin, Canadian Centre for Justice Statistics, Vol. 14, No.
12, p. 7, released May 1994). Over the
19 year period 1974 - 1992, a married woman was 9 times as likely to be killed
by her spouse as by a stranger (Spousal Homocide, Canadian Centre for
Justice Statistics, Juristat Service Bulletin, Vol. 14, # 8, at p. 4). And finally, the rate of husbands killing
wives is elevated six- fold in the aftermath of a separation (Spousal
Homocide, supra, at p. 7).
[26] Ibid,
p. 840. In the report on Spousal
Homicide released by the Canadian Centre for Justice Statistics in March,
1994 (Juristat Service Bulletin, Statistics Canada, Vol. 14, No. 8 at p. 5) , the following was said: "Evidence from various sources,
including police files, psychiatric reports, case law, and interview studies
from several countries, suggests that a large majority of wife killings are
precipitated by the husband accusing the wife of sexual infidelity, by her
unilateral decision to terminate the relationship, and/or by his desire to
control her". Police sources in
the same report suggest that 52% of the spousal homicides in 1991-92 were
attributed to an "argument or quarrel", and a further 24% to
"jealousy" (p. 5-6).
[28] Ibid,
p. 839; and see Faulkner, supra, footnote 3, at p. 12, and Stalkers,
by Jean Ritchie, supra, footnote
3 at pp. 30 and 323. This
estimate is quite consistent with preliminary data gathered in Canada. In April, 1995 the Winnipeg Police Service
released a report on investigations conducted and charges laid respecting
criminal harassment in Winnipeg during 1994.
Ninety percent of all stalking victims were known to their assailants. More significantly, however, 47.6% of those
charged were "intimate partners, past or present."
[31] Charles
Ng fled from California to Canada in 1985.
He resisted extradition for five years, but was transported from a
Canadian jail to San Francisco in 1991 to stand trial on nineteen counts,
including twelve of murder. In
chronological sequence, the reported cases on both sides of the border
are: Re Ng (1988), 93 A.R. 204,
affirmed 97 A.R. 241 (C.A.), lv ref [1989] 2 S.C.R.1X, further considered in
Canada in Reference re Ng
Extradition (Can.) (1991), 67 C.C.C. (3d) 61 (S.C.C.), now before the
courts in the State of California: Ng
v. Superior Court, 840 P.2d 961 (Sup. Ct. of Calif., 1992).
[32] In
Reference re Ng Extradition
(Can.)(1991), 67 C.C.C.(3d) 61 (S.C.C.), further considered in Kindler v
Canada (Minister of Justice) (1991), 67 C.C.C. (3d) 1 (S.C.C.), at p.
12-13.
[34] The
History of the Pleas of the Crown ("Historia Placitorum Coronae"), by
Sir Matthew Hale (London: 1736), Vol. 1 at p. 451.
[35] Commentaries
on the Laws of England, by Sir William Blackstone (Dublin: 1770), Book IV, at p. 199.
[36] The
offences of mayhem included the crime of "maim," which was punishable
under both the common law and by statute.
At common law, maim consisted of injuring a man's body in such a way
that he was less able to defend or attack an adversary. (Blackstone, supra,
at p. 205 W. Hawkins, Pleas of the Crown (London: 1824, 8th ed., Vol. 1,
p. 107); Coke, 3 Institutes 62, 118).
By statute, maim consisted of cutting out the tongue, putting out an
eye, slitting the nose, lip or a limb "on purpose and of malice
forethought, and by lying in wait."
(22 & 23 Car. 2, chapter 1, discussed in Hawkins, Vol. 1, at p.
108). Curiously, the concept of "lying
in wait" subsequently was propelled into both Canadian and American common
law, and has found its way into modern stalking laws in three American states
(Connecticut, Vermont and West Virginia):
Conn. Gen. Stat. 53a-181-(c) & (d); Vt. Stat. Ann. Tit 13,
1061-1063; W. Va. Code. 61-2-9a (1993 Revisions) 61-2-9a to 61-2-9k.
[38] 27
Geo. 2, Chapter 15 (1754); and see E. East, Pleas of the Crown, (London:
1803),Vol. 2 at pp. 1104-1126.
[39] In
Blackstone's era, no less than 160 offences carried the death penalty:
Blackstone, supra, Vol. IV at p .18.
[41] As a
remedy, sureties of the peace can be traced back to at least A.D. 1360:
Lansbury v. Riley, [1914] 3 K.B. 229; and see Blackstone, supra,
Book IV, at pp. 248-254.
