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Report on Stalking |
Stalking is a serious problem in Manitoba, especially for women. Stalkers can have a devastating effect on the lives of those who are stalked, subjecting them to harassment and fear in their homes, at work and in public places for months or even years.
The Manitoba Law Reform Commission's Report on Stalking recommends that legislation should be enacted to provide Manitobans with simple, effective and flexible protection from stalkers. The Commission has prepared draft legislation, The Stalking Protection, Prevention and Compensation and Consequential Amendments Act, set out in Appendix A of the Report, which it recommends for enactment. The proposed Act will also serve to prevent many instances of stalking and will provide a means by which subjects of stalking can receive compensation (in this Report, people who are stalked are referred to as subjects of stalking).
Until 1993, there was no offence which specifically outlawed stalking. Prosecutors were forced to focus upon some aspect of the stalker's conduct and bring it within an existing provision of the Criminal Code, thereby not addressing stalking as an independent phenomenon. Consequently, protection under the Criminal Code was incomplete and piecemeal. This changed in 1993 when the federal government amended the Criminal Code to include the offence of criminal harassment. This provision creates a general prohibition of stalking. However, even with this amendment, the criminal law does not directly provide protection while the stalking is occurring, prevent its continuation or provide compensation for the subject's losses.
Tort law details the circumstances in which a person who suffers loss or injury may bring a private civil action for damages to compensate him or her for that loss. Like the criminal law before 1993, tort law has proved inadequate to the task of providing a general remedy to the subjects of stalking because there is no discrete tort of stalking. Subjects of stalking must attempt to bring particular aspects of the stalker's conduct within the scope of an existing tort.
The Criminal Injuries Compensation Act provides some compensation to the victims of certain listed criminal offences. The Act, however, provides no relief for the subjects of stalking unless bodily injury is suffered as a result of a listed crime, such as assault. The subject of the offence of criminal harassment has no direct claim because that crime is not listed in the Act.
Currently, subjects of stalking may, in certain situations, obtain restraining orders and orders of protection from the courts. Peace bonds are available to persons who fear they will be injured or their property will be damaged, but these may take weeks or even months to obtain. Other protection orders such as orders available on judicial interim release or probation orders are only available after a stalker has been charged with a criminal offence. Family Maintenance Act orders allow subjects of stalking to seek no-contact orders, but only if they have cohabited with their stalker. That Act does not apply to situations where the stalker and subject had some lesser relationship, such as being boyfriend and girlfriend, or where the stalker is a stranger or co-worker. Prohibitory injunctions are also a means by which subjects of stalking can obtain protection, but these are difficult to obtain, costly and can involve long delays.
The dominant characteristic of the legal response to stalking is that the protection is uneven, uncertain and unpredictable. The result is that far too often subjects of stalking are left unprotected and uncompensated.
Because the concept of stalking covers so many different situations, no single remedy will solve the problem. What is needed is a basket of remedies aimed at different aspects of the problem. Only when the full scope of a person's interests are protected by a full range of remedies will the law have exhausted its power to deal with stalking.
The Commission has concluded that the best way to achieve this objective is through a provincial statute under which subjects of stalking can obtain civil orders designed to protect them, prevent further incidents of stalking and compensate them for their losses. A provincial statute offers a number of advantages: it can supplement the criminal law and fill the gaps which now exist in the non-criminal law; it can create remedies which are available quickly, easily, with few formalities and with a standard of proof lower than that required by the criminal law; it can address the needs of those who do not wish to punish their stalker, but simply wish the stalking to end; and it can recognize the need for flexibility and allow for a process and remedies that can be tailored to address individual situations, something the criminal law is not designed to do. Finally, the creation of a provincial scheme would empower the subject of stalking by providing a means of actively asserting her rights and "fighting back". The creation of a civil remedy would prompt more women to report incidents of stalking and to use the justice system in a proactive manner.
The Commission recommends that provincial legislation should be enacted to combat stalking. The Act which the Commission proposes is entitled The Stalking Protection, Prevention and Compensation and Consequential Amendments Act.
The definition of stalking in the proposed Act is sufficiently wide to draw within it the full range of unacceptable conduct without impinging on legitimate activity. It follows the definition of criminal harassment as much as possible, thereby adopting a meaning for stalking which has been tested in the courts and has the benefit of judicial interpretation.
Stalking occurs where a person, knowing that another person is harassed or recklessly as to whether the other person is harassed, engages in conduct that causes that other person reasonably, in all the circumstances, to fear for their safety or the safety of anyone known to them. The element of reasonable fear is the dividing line between lawful conduct which is merely annoying and harassing conduct which can be the subject of legal remedies.
"Recklessly" in the context of stalking behaviour means that the stalker knows that his attentions are unwanted but continues in his conduct. Therefore, in order to come within the definition of stalking, a respondent (the alleged stalker) need not desire that the subject is harassed so long as he knows that is the result or that such a result is possible.
There is both a subjective and objective element to the requirement of fear and both must be satisfied in order for stalking to occur. In order to meet the subjective requirement, the person must actually feel fear. For the objective requirement, the subject's fear must be "reasonable in all the circumstances". This allows the court to consider an alleged stalker's actions in their full context and permits the examination of any prior relationship with the subject of the stalking, any imbalance of power in that relationship and any other factors which might explain why the subject is fearful for her safety.
The Act lists examples of stalking, such as repeatedly following another person, repeatedly communicating with another person, watching a person's house or place of business or engaging in threatening conduct directed at another person. The listed examples of stalking are not exhaustive and other conduct may come within the definition of stalking.
Protection orders are designed to provide a person being stalked with immediate protection. They are available from a designated justice of the peace without notice to the alleged stalker, upon proof of three criteria: the subject is being stalked, she fears for her safety at the time of the application and she has an honest belief that the respondent (the alleged stalker) will continue to stalk her.
Because protection orders are meant to provide immediate relief and are available without notice to the alleged stalker, the relief which is available is limited to provisions aimed at stopping the threat to the subject's safety. They include provisions prohibiting the respondent from stalking the subject, from communicating with the subject or from attending at or near any specified place that is attended regularly by the subject, provisions directing the respondent to relinquish firearms and any other provisions necessary to provide for the immediate protection of the subject.
The Commission recommends that justices of the peace be the first point of contact for applicants, rather than judges of the Court of Queen's Bench, because there are a significant number of such officers located throughout the Province, while there are fewer judges of the Court of Queen's Bench, in fewer locations. There is greater informality when appearing before a justice of the peace and the process is quicker and less expensive, making their use more conducive to providing assistance to subjects of stalking.
A subject may appear in person before a designated justice of the peace to apply for a protection order. The application may also be made on behalf of a subject by a peace officer or by a lawyer; those applications may be made in person or by telephone.
Protection orders given by justices of the peace are promptly reviewed by a judge of the Court of Queen's Bench who may confirm the order or decide that the matter be reheard. The ordering of a rehearing does not affect the protection order; the order remains in effect until the hearing.
If a matter is reheard, the subject and the stalker will both have an opportunity to make their case at the rehearing, after which the judge has three options. He or she may confirm the protection order, terminate the order or vary the terms of the order. Once an order is confirmed at a rehearing, either a subject or a respondent may apply to a judge to have the order varied, expanded, restricted or terminated.
Prevention orders are designed to address situations where the subject's needs are less urgent. The relief available under a prevention order includes all the relief available by way of protection order plus several additional remedies designed to prevent further stalking and to compensate the subject. Applications for prevention orders are to be made in accordance with theQueen's Bench Rules. The respondent is given notice and a hearing is held before a judge of the Court of Queen's Bench. The hearing may be conducted in any manner the court sees fit. Witnesses may be called or the evidence may be presented by way of affidavit.
A prevention order can award compensation for specific damages caused by stalking, such as income lost as a result of the stalking, the cost of obtaining counselling and the cost of changing residences or adding security. It can also include provisions that the respondent return the subject's property, that the respondent obtain counselling at his own expense, that the respondent post a bond to ensure his compliance with the prevention order and that the respondent surrender to the court any property he is using to assist him in his stalking activities (which may include his driver's licence).
The proposed Act also creates a tort of stalking, thereby permitting the subject to recover all the relief available in civil actions, including damage awards and injunctions. Suing a stalker in the tort of stalking allows a subject to receive damages for loss of future income, damages for pain and suffering, aggravated damages and punitive damages.
The proposed Act also amends The Criminal Injuries Compensation Act to provide compensation for injuries resulting from criminal harassment. This would allow subjects of stalking to receive compensation for some of their losses arising from the stalking. Coverage under this Act would provide a quick, efficient and inexpensive way for a subject to obtain some financial relief.
In order to protect the identity of the subject, the proposed Act requires that the subject's address be kept confidential when she makes any application for orders. The subject may also request that the court make an order prohibiting the publication of any information likely to identify any party or witness to proceedings under the Act.
The proposed Act provides that, in circumstances where the subject does not know the name of the stalker, she may seek the assistance of the police in identifying the respondent so that she can obtain an order under the Act.
While the primary objective of the proposed Act is protection for persons who are being stalked, it is also respectful of the rights of persons who are alleged to be stalking. The Commission recognizes that the reputation of an innocent respondent may be damaged if it becomes known that a protection order has been obtained against him. Therefore, the Act provides for an automatic temporary publication ban on any information which might identify any party to the proceedings. The ban is in effect until the respondent has had a reasonable opportunity to challenge the validity of the protection order. Any person who violates the publication ban is subject to strict penalties.
The proposed statute does not contain any penalties for non-compliance with its orders. However, this does not mean that non-compliance is without consequences. Where a statute is silent as to the consequences of non-compliance with court orders made pursuant to the Act, three remedies automatically apply: civil contempt of court, criminal contempt of court and section 127(1) of the Criminal Code. These remedies offer a subject of stalking and the court flexibility in dealing with a persistent stalker and allow for punishment in the form of significant fines and incarceration.
While the proposed Act is designed to address stalking, it may also have a role to play in combatting domestic violence. In many cases, violence by one spouse against another will fall within the definition of stalking. A person who is the subject of domestic violence will often also be considered to be a subject of stalking under the proposed Act and will often be able to avail herself of its remedies. However, it must be recognized that the proposed Act was designed to address stalking, not domestic violence, and so it does not contain some of the remedies that are needed to address the problem of domestic violence properly. The Commission had intended to undertake such a project, but now will be unable to do so.
The Stalking Protection, Prevention and Compensation Act provides subjects of stalking with a variety of remedies and procedures which they can utilize to address their individual situation and which will be available quickly, easily and without expense. Although the Act will be an effective tool to combat stalking, it is not a panacea and the Commission recognizes that more must be done. For example, developments in the rehabilitation and counselling of stalkers, assistance programs for subjects of stalking and education of members of the justice system are also needed.
Legislation alone cannot solve the problem of stalking. However, the legislation proposed in this Report is an important advance in the fight against this serious problem.
Report #98,
May 1997
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