Canada needs to overhaul how it handles stalking, harassment cases: experts

Latest Statistics Canada data from 2020/2021 shows that there were 3,009 total cases of criminal harassment brought before the courts in that time period, containing 7,371 total charges. Of those, there were 2,100 guilty verdicts. (RODNAE Productions / Pexels)

There was a time in her life when Anya wanted to be a neurologist. Driven and determined, she studied at the University of Guelph, in Ontario, from 2009 to 2013 to follow that path.

In her neuroscience class, the teaching assistant, a man 12 years older than her, made that impossible.

"He friend requested me on Facebook, and then proceeded to download photos of me, and edit them with graphics and quotes and re-upload them onto his account," Anya told CTV News in an email.

CTV has agreed not to publish Anya’s full name due to safety concerns.

She said the teaching assistant soon began taking photos of her in class without her consent, and without her knowledge, and uploaded them to his account as well.

It wasn’t until Anya’s roommate, by chance, came across his profile on social media, that she realized the true extent of his obsession. Three or four photo albums, with about 40 photos in each, full of pictures of her.

"I freaked out," she said. "I didn’t know what to do, I approached him in class and he got angry about it, and said ‘what, don’t you like it?"

Anya stopped going to class after that.

She never reported the teaching assistant to the police, afraid they would dismiss her fears.

Her story is a snapshot of the issues facing victims of stalking, and is why advocates across law and women’s rights sectors are calling on Canada to overhaul how it handles the crime, from the police to the court to the communities we live in.

"Canada does not do enough when it comes to stalking," women’s rights advocate and educator Julie S. Lalonde told CTV News in a telephone interview. "It’s particularly dire when you compare it to other similar countries like the U.S. and even the U.K., where there is far more robust infrastructure for survivors than here in Canada."

A global conversation on stalking has been in the headlines, after high-profile stories like the September murder of a female washroom attendant in a Seoul subway station.

The man accused of murder had been stalking her since 2019, with the victim filing multiple police complaints against her attacker for illegally filming her, stalking her, calling her incessantly and uttering death threats.

The 28-year-old’s murder happened one day before the court was expected to sentence her killer, who had been out on bail since October. The killing sent shockwaves through South Korea, which recently updated its stalking law in 2021, changing it from a minor offence punishable by a fine to a charge that can lead to up to five years in prison.

In the U.K., the Victims Commissioner for London, Claire Waxman, spoke out after her stalker of 19 years was given a 16-month sentence after being found guilty of breaching the lifetime restraining order she had against him – for the sixth time.

He was released immediately as he had spent time in prison while awaiting the trial.

In England and Wales, only six per cent of stalking cases reported to police end up with charges being laid.

Canada does not track criminal harassment cases in the same way. But latest Statistics Canada data from 2020/2021 shows that there were 3,009 total cases of criminal harassment brought before the courts in that time period, containing 7,371 total charges. Of those, there were 2,100 guilty verdicts (28%).

Meanwhile, data provided by Statistics Canada from major Canadian cities counted 14,790 incidents in 2021 that were reported to police, related to criminal harassment.

"I don’t think there’s a single country that we can point to as having really figured out how to address this, how to prevent it, how to offer adequate support," Lalonde said. "It’s the unfortunate reality of gender-based violence writ large, is that no one’s really nailing it."

STALKING IN CANADA

In the Canadian Criminal Code, what the public understands as stalking is referred to as criminal harassment, a specific offence that was first added to the code in 1993 in recognition of gender-based violence against women. It encompasses harassing behaviour that includes stalking.

Previously, police could charge someone with trespassing, loitering or uttering threats – but with the new addition, police can now use criminal harassment, a charge that carries a maximum sentence of up to 10 years in prison.

Some stalkers are those who have mental disorders, or are individuals who fixate or obsess over a stranger.

In Canada, about 12 per cent of victims of criminal harassment are harassed by a stranger, according to government data. The majority of stalkers, approximately 88 per cent, know their victims and are trying to exert control over them.

Statistics Canada data shows that 8 out of 10 victims of criminal harassment are women, and 9 out of 10 stalkers are men.

In their 2021 data break down, Statistics Canada recorded 11,150 criminal harassment victims were women, a rate of about 72 per cent, while men were the victim in 3,640 cases at a rate of approximately 24 per cent.

WHAT STALKING MEANS

Gillian Hnatiw is a civil litigation lawyer and one of Canada’s foremost voices on sexual assault, harassment and violence, including voyeurism and ‘revenge-porn.’

She told CTV News in a telephone interview that the country should move on from the idea of stalking being the stereotype of a stranger in the bushes with binoculars in order to truly address the issue.

"Today, we more think of it as part of an overarching pattern of coercive control. And so that is tracking, monitoring, attempting to control some of these movements with an intent to control them," she said, explaining that using secret apps, GPS trackers and even Apple tags to monitor someone is common. "It's all variations on a theme. Using any information in electronic and physical means for the purpose of trying to control another person."

Lalonde said she knows of women who've had their abusers tap into their home security systems, and "tap into their OnStar like GPS in their vehicle. One woman I was working with, her ex, would send her pictures from the inside of her house that he took by hacking into her security camera that she got thinking it would protect her. Another woman whose partner would turn the lights on and off through her like Google home at three in the morning just to terrorize her.”

It can also look like obsession.

Anya later found out the teaching assistant was the same man was the person who was calling her every night for many months, mostly around 2:00 a.m., then hanging up on her.

"He also tried to mail me his ex-wife’s engagement ring," Anya said. "I nearly failed the class because I was so scared of going – he ruined something for me forever, he altered my career path, he affected my life forever through fear."

Anya said she did not go to the police because she felt they would label her as a woman "overreacting" and that the process would be "embarrassing."

"My friends and I did not realize how [truly] messed up his behaviour was, and did not really realize we could ask for help," she said.

"I think some of the men who engage in this kind of behaviour don't entirely appreciate the enormity of harm that flows from it," Hnatiw said.

CANADIAN COURTS STRUGGLE TO FUNCTION

Ottawa criminal defence lawyer Michael Spratt told CTV News in a telephone interview that the provisions under the Code can be “cumbersome” when it comes to actually laying charges.

"They require the Crown to prove that there was contact between the two individuals, that that contact was unwanted, that it was persistent, that it caused fear, or that the person was being followed," he explained.

Women’s rights advocates have expressed that the 1993 provision is not nuanced enough to cover how criminal harassment has evolved with the use of social media and the internet.

Spratt agreed, but said to an extent a major issue with the Canadian criminal justice system when it comes to cases like this, is the extreme backlog and speed of the courts.

"I have seen some problems with the enforcement and the timeliness of how those matters move through the court and some of the clients who I've assisted who have been the victim of that type of behaviour, that has been one of their major concerns," he said.

For instance, victims of criminal harassment have several options of securing a restraining order, a peace bond or other official documents that can provide some safety and may scare off their harasser.

"The problem is that by the time you go into a justice of the peace and have the peace bond sworn, have the person served with that peace bond, have the matter return before the court, have the person who is the subject of the peace bond contest it…months and months, if not years, can go by because of court delays and that can result in a delay in the proper application of justice," Spratt said.

Hnatiw agreed that the court system delays are an issue, but believes there is room for the Criminal Code to be updated.

"Proving any criminal charge is always a challenge because of the need to prove those allegations beyond a reasonable doubt," she said. "I think criminal harassment is a crude fit for the type of behaviour you see in patterns of coercive control."

Hnatiw said multiple women’s rights organizations have called for “coercive control” to be added to the Code as a freestanding offence in order to make it more robust – something she is not opposed to, but notes there are other societal issues at play.

"In order for it to meet the threshold of criminal harassment in Canada, you have to prove that it was unwanted, it was repeated, and it made you fear for your safety," Lalonde said. "And the fear for your safety element is where a lot of things fall apart."

Both Hnatiw and Lalonde cited the stalking case of Sue Montgomery, the former Montreal Gazette journalist turned mayor, whose alleged harasser was acquitted of charges because the judge did not believe Montgomery was afraid.

"It was a real early example of how social norms are disconnected from the experience of the people who actually go through this," Hnatiw said. "I think that’s extra pronounced when you have a predominantly male judiciary trying to evaluate something that's predominantly experienced by women."

Lalonde said the way the court and justice system is now, the understanding of "fear" is too subjective to be effective.

"What I'm advocating for is that we massage that language so that it's not about showing an element of fear, but showing that it has obstructed your ability to move about your daily life. And I think that would better capture the reality that victims often minimize what they're going through," she said.

POLICE ARE THE GATEKEEPERS

Sexist biases, stereotypes, under-reporting and other discrimination are just some of the issues Andrea Gunraj, vice-president of public engagement for the Canadian Women’s Foundation, listed as hurdles when it comes to police taking criminal harassment and stalking seriously.

"Survivors of stalking sometimes speak to feeling dismissed and being told there’s not much the police can do to protect them when they report," she said to CTV News in an email, adding that when victims try to report stalking, responses from police such as 'it’s just a compliment,' or that they cannot do anything until there is an overt threat, are harmful.

"Where people reporting stalking have gotten these responses, it’s very damaging to them, especially as they are already vulnerable. It keeps them in a position of risk and harm," Gunraj said. "Public trust, particularly the trust of those at high risk of gender-based violence like Indigenous women, women with disabilities, young women, and 2SLGBTQIA+ people, does get shaken when this is the response they get."

Hnatiw said in her experience, if a victim is stalked or harassed, "it’s very unlikely the police are going to offer you any effective assistance."

"Too often the police see themselves as agents of the criminal code," she continued. "So if they think there's not a reasonable prospect of securing a conviction, then they very often won't do anything and just leave the individual to figure out protection from their own point of view."

Spratt also highlighted the role of police in Canada’s need to overhaul its approach to stalking and criminal harassment.

"I think police have taken a more narrow view to this sort of stalking behaviour that might be from a lack of legal education," he said. "Certainly we've seen police forces being very resistant to continuing legal education, not only about their responsibilities and civil liberties and Charter protected rights, but also to the sort of legal nuances of some of these offences, for example, criminal harassment."

Spratt said better enforcement, police being proactive and prioritizing cases of criminal harassment as well as not insisting on “perfect evidence” are steps he would like to see implemented.

"There may be room for the government to look at, ‘do the police need new investigative tools and powers to deal with this? How do we strike the balance between the importance of being anonymous online and the benefits that that can come with that and how that can be abused to control and create fear in someone's life?’" he said.

For Lalonde, who experienced years of stalking from a former partner, and who “did all the right things” when it came to reporting his abuse to police – she takes a slightly different view.

"I don't actually think it's about resources, truthfully. I think it's about they just do not understand that stalking is a precursor to homicide. They do not see it that way," she said.

"Stalking is so fascinating," Lalonde continued. "The way in which police will be like, 'yeah, this seems brutal, but my hands are tied,' or 'he has to follow through on it,' or 'unless he throws a brick through a window with four witnesses, there's nothing we can do' - we'll never be able to get charges to stick."

"So you're literally telling women you're a sitting duck."

In an email to CTV News, the RCMP responded to a detailed list of questions regarding stalking, criminal harassment and police training.

"The RCMP takes all incidents of criminal harassment, including stalking, seriously," it said, adding that there is no evidentiary threshold that "must be met" for police to launch an investigation into a complaint of criminal harassment.

“There are, however, evidentiary thresholds that must be met for an individual to be charged with this offence,” the email continues.

The RCMP highlighted their national operational policy on criminal harassment, which includes that “all complaints of criminal harassment are immediately and thoroughly investigated,” and “when determining the appropriate course of action, consider all of the circumstances, including prior history, the relationship between the involved parties, allegations of aggression, and the frequency and escalation of criminal behaviour.”

“The RCMP responds to the changing risks and needs of the public, the communities it serves, and its officers by continually assessing, developing, and modifying policy and training.”

GOVERNMENT RESPONSE

CTV News reached out to the Minister for Women and Gender Equality and Youth Marci Ien, as well as the Public Safety Minister Marco Mendicino, with a detailed list of questions regarding Canada’s current process for handling stalking, including the Criminal Code, policing and victim demographics, as well as what plans the government may have for changes.

Minister Ien’s press secretary directed CTV News to Minister Mendicino’s office, whose press secretary directed CTV News to the Ontario Solicitor General, despite the queries referring to a national response.

“There's no one advocating for us at a national level or even a provincial level,” Lalonde said. “There's no collective voice for victims of stalking. It just gets subsumed into other conversations.”

CHANGES NEEDED: SHIFTING SOCIAL NORMS

For Lalonde, a tangible change she would like to see is an interactive map where victims could log on and be able to look up where the resources in her area are, where she can get legal advice, which shelters are open and equipped to help.

“I think we need a national advocacy organization that can be leading this conversation in terms of creating those public education materials, doing that training with police, with frontline workers, like really holding that knowledge and sharing it,” she said.

Both Hnatiw and Gunraj highlighted the need to stop viewing the issue of stalking and criminal harassment purely from a criminal justice standpoint.

“It’s past time for society to start taking a large step back and seeing this as a matter of public health and safety, and something that communities have to take seriously,” Hnatiw said.

“Legal systems can’t be where we focus all public investment and hope for ending stalking and other forms of gender-based violence,” said Gunraj, adding that she would like to see a change in policy, across all sectors to improve school curriculum, and a push for a public awareness campaign.

“We can evolve the conversation around stalking,” Lalonde said. “There's just hasn't really been a will to do so.”

Edited by CTVNews.ca producer Phil Hahn. Graphics by Deena Zaidi