In an important decision for the legal treatment of abused women, Ontario's top court has found that stalking and verbal threats can be just as severe as physical attacks.
The province's Court of Appeal upheld a sentence of 5 1/2 years in the case of a man who subjected a woman he had recently met to a barrage of harassing phone calls and letters, including two sent while he was in jail awaiting trial.
Patrick James Doherty argued that, because he did not assault his victim, he should receive a lesser sentence. The court rejected his reasoning.
The victim "suffered mentally and physically as a result of the appellant's harassment. She lost weight, lost sleep and was anxious and worried about what he may do to her," wrote Justice Dennis O'Connor of the court's unanimous decision. "The impact on her was magnified each time he ignored her pleas to stop, the police warnings and the court orders."
It all began in November of last year when Agnieszka Mikulska posted a classified advertisement online, seeking a roommate for her Kitchener, Ont., apartment. Mr. Doherty responded. Initially polite, he became angry when Ms. Mikulska picked someone else to live with her.
According to the court decision in the case, Mr. Doherty called her repeatedly, showed up at her home and slipped notes under the door. On one occasion, he threatened to have her killed. She went to the police, who told Mr. Doherty to leave her alone, but he persisted.
He was arrested last Dec. 14, but even this was not enough to stop him. Despite a restraining order, he wrote Ms. Mikulska letters demanding that she change her statements to police.
Earlier this year, Mr. Doherty, 53, was convicted of criminal harassment, obstructing justice and breaching a court order. Justice Margaret Woolcott sentenced him to four years for the harassment charge and 1 1/2 years for the other offences, minus two months for time in pretrial custody.
In her decision, she wrote that "the primary impact of harassment is very often psychological … there is no requirement that there be physical harm to make out a very serious case of criminal harassment."
Mr. Doherty, who has a lengthy criminal record, including weapons and harassment offences, appealed. The higher court, however, agreed with Judge Woolcott.
The ruling is significant for abused women, who often endure threats, said Joanna Birenbaum, a Toronto lawyer. "The decision in this appeal confirms that we don't need to wait for women to be assaulted or killed before we take threats and stalking very seriously," she said.
Isabel Grant, a University of British Columbia law professor, said the purpose of the harassment law is not to punish physical violence – there are already assault charges for that – but rather to deal with people who inflict fear on their victims. "It's giving the criminal harassment provisions the meaning that they have," she said.
A similar case, about which Ms. Birenbaum and Ms. Grant wrote an academic paper, is set to be heard at the Supreme Court Thursday. In that instance, a Manitoba man was accused of threatening to kill his girlfriend if she got an abortion. He was acquitted, however, after the woman testified she did not take his threats seriously. The Crown attorney appealed.
Adrian Morrow