Harassment as domestic violence

The Ontario Court of Appeal in its decision regarding R v. Doherty has emphasized a powerful legal principal which affirms that abuse can include harassment. This means that physical violence is not a necessary element of a criminal charge and conviction. 

Mr. Doherty is a man with a lengthy criminal record that includes prior convictions for regarding three other women. He also had a record for failing to honour the direction of police, probation and the courts. However, what matters in this case is the inclusion of non physical injury as the basis for a conviction.

The court states at para. 7 of its decision:

Ms. Mikulska suffered greatly as a result of the harassment. She was terrified of the appellant.

The decision further notes at para. 13:

Ms. Mikulska 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. The impact on her was magnified each time he ignored her pleas to stop, the police warnings and the court orders    

In other words, his harassment caused her injury but not through physical force. 

The court also makes reference to a comment from the trail judge that is worth considering. The giving of evidence against your abuser also has an impact on the victim:

In my view, she fell within that category of witness who was re-victimized by having to come to court and give evidence.

In para. 15, the appeal court affirms that physical force is not necessary:

I agree with the respondent that the appellant is not entitled to mitigation on the basis that there were no physical assaults. As the trial judge noted, submissions suggesting that the lack of physical violence makes this offence less serious, “reflect a failure to appreciate 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.”

This decision will not solve domestic violence including harassment. It does give the police and the judiciary good guidance on the role that harassment plays as part of the world of abuse.