“I’ll be watching you”: a socio-legal analysis of judicial decisions in Canadian criminal harassment cases, 1993-2006

Criminal harassment became a criminal offence in Canada in 1993, in part to protect women who face increased risks of violence when leaving abusive relationships. This dissertation provides a critical socio-legal analysis of 526 criminal harassment court decisions reported in QuickLaw from 1993 to 2006. The research employs both quantitative and qualitative techniques through a critical and gendered lens and is best characterized as constructivist and inductive. Demographic data regarding offenders and victims, and characteristics of criminal harassment are compared with official data and other analogous studies. Three major themes emerged from the qualitative coding of the cases. The first theme shows that judicial interpretations of the credibility of both offenders and victims sometimes come down to: a contest between the accused and the victim; a “blaming” game; or a discussion of what is reasonable in the circumstances. A second theme concerns the role of the psy professions and risk assessment in criminal harassment sentencing decisions. The extant literature suggests that psy experts play a significant role in the cases. Analysis, however, found their role was minimal, yet judges sometimes make use of psy language in the absence of expert opinions and reports. The final theme examines the gendered construction of criminal harassment showing that offenders are sometimes characterized as unable to “let go” of a relationship, or will do anything to get their former intimates’ attention. The offenders’ behaviours escalate to criminal harassment perpetuating power and control issues that seem to be inevitable in abusive relationships. Judicial decisions are examined within a socio-legal context, including the constraints judges face given the adversarial system in which they operate. In contrast to much of the existing literature, the judicial decisions in this study show encouraging results in that, for the most part, the judges appear to take criminal harassment seriously as evidenced by the sentences they impose. There is, however, a disjuncture between judicial decisions and policies designed to protect women from intimate violence. Until coordinated efforts resolve systemic and structural problems at a much earlier stage in the process, there will be no end to violence against women.