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Family Violence Initiative Spousal Abuse Policies and LegislationFinal Report of the Ad Hoc Federal-Provincial-Territorial Working Group Reviewing Spousal Abuse Policies and Legislation Prepared for The views expressed herein are solely those of the authors and do not necessarily reflect those of the federal, provincial and territorial ministries responsible for Justice. Aussi disponible en français
In September 2000, the federal, provincial and territorial (FPT) Ministers responsible
for Justice directed the establishment of an ad hoc FPT working group to review
the implementation and status of the mandatory or pro-charging and prosecutorial
policies related to spousal abuse as well as several proposed legislative reforms.
This working group was directed to report back to Ministers on the results of
this review within one year.
The Ad Hoc FPT Working Group Reviewing Spousal Abuse Policies and Legislation
was established in November 2000 and is co-chaired by the Department of Justice
Canada and the Nova Scotia Department of Justice. The Working Group submitted
its first report to FPT Ministers at their September 11, 2001, meeting.
This first report included a final report on the review of proposed Criminal
Code reforms and an interim report on the review of the spousal abuse charging
and prosecutorial policies.
In response to this first report, Ministers approved the Working Group’s unanimous
recommendation to amend section 127 of the Criminal Code (Disobeying
Order of Court) to make it a hybrid offence, carrying a maximum penalty of two
years when proceeded by indictment. Ministers also extended the mandate of the
Working Group to enable it to complete its review of the spousal abuse policies.
The pro-charging and pro-prosecution policies for spousal abuse are, in fact,
the applicable standards for all criminal conduct. Their specific application
to spousal abuse cases underscores the need to make the critical distinction
between the criminal justice system’s treatment of spousal abuse as a “criminal
matter” and its historical treatment of spousal abuse as a “private matter.”
Although the pro-charging and prosecution policies have been in place at the
federal, provincial and territorial levels since the mid-1980s, the Working
Group’s review of the policies represents the first co-ordinated review conducted
across Canada.
The Working Group conducted an extensive review of research, including statistical
data. In addition it endeavoured to obtain the input of frontline criminal justice
personnel to assess their perspectives on how the policies are working, as well
as to identify any inconsistencies between the policies as written and adopted
and their day-to-day operation. The Working Group also considered how the spousal
abuse policies reflected and responded to the diversity of spousal abuse victims.
The Report provides an overview of the nature and incidence of spousal abuse
in Canada today. Although both women and men experience spousal abuse, the nature
and severity of the spousal violence suffered by women is much worse, with the
result that spousal abuse remains predominantly an issue of male violence against
women.
The Report traces the adoption of the spousal abuse policies in Canada, commencing
in 1981. It reviews the experiences with the policies by police, Crown prosecutors
and victims. The Working Group has identified three key objectives of any criminal
justice system response to spousal abuse: criminalizing spousal abuse; promoting
the safety and security of the victim; and maintaining confidence in the administration
of justice.
With respect to the charging policy, the Working Group concludes that it has
contributed significantly to the strengthening of the criminal justice system
response to spousal abuse. Despite some unintended negative consequences of
the adoption of the pro-charging policy, the majority of victims strongly support
the policy. The policy ensures a strong and consistent first line of response
by the criminal justice system that helps to ensure the safety and security
of spousal abuse victims. The Working Group recommends its continued retention.
Regarding the prosecution policy, the Working Group notes that its implementation
has met with mixed results. However, properly interpreted and applied, the prosecution
policy has had and can continue to have a positive impact in strengthening the
criminal justice system’s response to spousal abuse. The Working Group recommends
its continued retention.
The Working Group also reviewed the many innovative measures that have been
implemented by federal, provincial and territorial governments to support and
enhance the effectiveness of the spousal abuse policies in particular, and to
strengthen the criminal justice system’s response to spousal abuse more generally.
Finally, the Working Group acknowledged that certain jurisdictions (federal,
provincial and territorial governments) have policies and strategies that address
not only spousal, but also family, violence. In this regard, the Working Group
recognized that in many instances the measures related to spousal violence were
part of a broader strategy to address family violence.
The Working Group reviewed the many innovative structures and models, including
dedicated domestic violence courts, civil legislation to better protect victims
against domestic violence, and intersectoral co-ordinating strategies and initiatives
throughout the country. The Working Group also surveyed the availability of
support programs including victim services; shelters and non-residential support
programs for abused women and their children; interventions for children who
are exposed to spousal abuse; abusive partner intervention programs; the development
of risk assessment tools and monitoring/tracking systems; and training.
The Working Group concludes that these innovative measures and approaches have
played a key role in supporting the implementation of the spousal abuse policies.
They have also strengthened the criminal justice system’s response to spousal
abuse by providing new ways and tools to ensure that the system is sensitive
to the unique realities of spousal abuse. Accordingly, the Working Group recommends
continued support for the development of new and innovative justice system responses
to better support and safeguard the victim throughout the criminal justice process,
to rehabilitate the offender, and to ensure a strong, co-ordinated multisectoral
response to spousal abuse. Ongoing training for criminal justice personnel and
evaluation of new measures are critical to ensure strong and effective criminal
justice system responses to spousal abuse.
Finally, the Working Group also acknowledges that many gaps remain in our understanding
of the causes of spousal abuse: the impact of the justice system response to
this form of violence; and the effectiveness of the various programs and services
for victims and offenders. The Working Group recommends that jurisdictions support
research to address these information gaps in order to provide a foundation
for building a more effective response to domestic violence. A list of the recommendations
is provided in section V of this Report.
SECTION I: REVIEW OF SPOUSAL ABUSE POLICIES1) BACKGROUND Spousal abuse is a serious and complex issue with multiple dimensions and causes. It manifests itself in all societies[1] and across all social classes.[2] It goes by different names, including wife assault, wife abuse, violence against women in relationships, spousal abuse and partner abuse; in some societies it remains nameless, reflecting an unwillingness to formally and publicly recognize something that is perceived to be a “private” matter.[3] Whatever it is called, violence against one’s current or former spouse, common-law or other intimate partner is not a new phenomenon. Yet, the development of our awareness and understanding of spousal abuse, including its incidence and indicators of violence, as well as its impact on victims, is relatively new and growing. Similarly, the development and implementation of new specific criminal justice system responses to spousal abuse, an issue that had historically been invisible to the system, has been fairly recent. From 1983 to 1986, federal and provincial Attorneys General and Solicitors General adopted policy directives that required police and Crown prosecutors to charge and prosecute all incidents of spousal abuse where there were reasonable and probable grounds to believe that an offence had been committed. Since that time, other measures have been taken to complement and strengthen the implementation of these policies across the country. These measures include the establishment of dedicated domestic violence courts, services and treatment programs, as well as the enactment of civil legislation for victims of domestic violence. In addition to such measures, numerous inquiries, task force reports and studies have been undertaken to more closely examine the issue of spousal violence in particular cases. The effectiveness of the criminal justice system’s response to spousal abuse is an issue that has often come before federal, provincial and territorial (FPT) Ministers responsible for Justice for their consideration. Such discussions have often focused on proposed legislative reforms directed at specific forms of spousal abuse. However, at the September 2000 meeting of FPT Ministers, the discussion included a broader consideration of the impact of the charging and prosecutorial policies relating to spousal abuse that have been adopted since 1983. These policies are often described as “pro-charging” and “pro-prosecution” policies; nonetheless, they are, in fact, the applicable standards for all criminal conduct. Their specific application to spousal abuse cases played a pivotal role in helping to make a critical distinction between the criminal justice system’s treatment of spousal abuse as a “criminal matter” and its historical treatment of spousal abuse as a “private matter.” Although the pro-charging and prosecution policies for spousal abuse have been in place in all provinces and territories in Canada since the mid-1980s, the Working Group’s review of the policies represents the first co-ordinated review conducted at the federal, provincial and territorial level. Accordingly, Ministers approved of the establishment of an ad hoc FPT working group to review the implementation and status of the spousal abuse policies and to report back to Ministers on the results of this review within one year. Ministers also directed an FPT review of proposals, made by Alberta and Ontario, to amend the Criminal Code relating to spousal abuse. This review was subsequently assigned to the proposed ad hoc working group. The Ad Hoc FPT Working Group Reviewing Spousal Abuse Policies and Legislation was established in November 2000. The Department of Justice Canada and the Nova Scotia Department of Justice co-chair the Working Group. A copy of the Working Group’s mandate is appended hereto in section VI of this Report. The Working Group comprises at least one representative from each jurisdiction (federal, provincial and territorial governments acting within their purviews), with membership representing police, Crown Prosecutors, correctional services, victims’ services, policy and research. Four sub-committees were established to examine legislation, policies, support services, and structures and models. The Working Group submitted its first report to FPT Ministers at their September 2001 meeting. This report included a final report on the review of proposed Criminal Code reforms and an interim report on the review of the spousal abuse charging and prosecutorial policies. With respect to the legislative review, FPT Ministers approved the Working Group’s unanimous recommendation to amend section 127 of the Criminal Code (Disobeying Order of Court) to make it a hybrid offence carrying a maximum penalty of two years when proceeded by indictment. The federal Minister of Justice has since included this proposed amendment in Bill C-20, An Act to Amend the Criminal Code (protection of children and other vulnerable persons) and the Canada Evidence Act (First reading December 5, 2002). The majority of FPT Ministers also accepted the recommendation of the majority of the Working Group against enacting the other four proposed Criminal Code reforms. Lastly, Ministers approved of the extension of the mandate of the Working Group in recognition of the fact that the Working Group had been asked to complete the review of proposed legislative reform on an expedited basis. Contents of Report This Report provides an overview of the nature and incidence of spousal abuse in Canada today, summarizes the background leading up to the adoption of the pro-charging and prosecution policies, and reviews the research findings relating to the implementation and effect of the policies in Canada. This section includes a brief overview of the current trend toward the use of alternative justice processes. The section concludes with recommendations, including recommendations on the use of alternative justice processes in spousal abuse cases. The Report then provides an overview of and recommendations on related structures and models, as well as support programs. A compendium summarizing all of these supporting measures is provided in section VI of this Report, and a list of the Working Group’s recommendations is contained in section V. 2) THE NATURE AND INCIDENCE OF SPOUSAL ABUSE IN CANADA There are numerous indicia of the serious nature of spousal abuse, not the least of which are its physical and emotional impacts on victims and their children. Other indicia include the incidence of spousal violence, its nature, its victims and its consequences for Canadian society. Statistical data and supporting research offer invaluable insight into all of these factors. (Except where otherwise cited, statistics noted herein are taken from Statistics Canada’s Family Violence in Canada: A Statistical Profile 2002.) The availability of data on spousal abuse in Canada is still a fairly recent phenomenon. In 1980, the Canadian Advisory Council on the Status of Women provided the first national estimate of the incidence of spousal abuse in Canada: “Every year, 1 in 10 Canadian women who are married or in a relationship with a live-in lover are battered.”[4] The author of this 1980 study subsequently described the reaction to the revelation of this estimate as one that shocked policy-makers and the public.[5] Since that time, we have had the benefit of additional and more comprehensive data, the most significant of which have been Statistics Canada’s Uniform Crime Reporting Survey (UCR2),[6] the 1999 General Social Survey on Victimization (GSS), the 1993 Violence Against Women Survey and the Homicide Survey.[7] Both victimization and police-reported incident-based surveys have advantages and limitations. However, victimization surveys are considered more complete since they interview samples of the population directly about their experiences and do not depend on victims’ willingness to report crimes to police, as is the case with the UCR2 survey. Who are the victims of spousal abuse? Both women and men experience spousal abuse. GSS data from 1999 indicate that eight percent of women (690,000) and seven percent of men (549,000) reported experiencing at least one incident of violence by a current or previous partner during the preceding five-year period. Overall, this amounts to 7 percent of adult Canadians.[8] This rate increased to 20 percent for Aboriginal peoples (25 percent for women and 13 percent for men).[9] UCR2 data for 2000 indicate that spousal abuse victims represent 1 in 5 (18 percent) of all violent offence victims (p. 6). In 2000, women represented 85 percent of victims who reported spousal abuse to police while men represented approximately 15 percent of victims. This proportion has remained relatively stable since 1995, although the number of spousal assault cases reported to police increased for both women and men over this time period (pp. 6-8). The number of criminal harassment cases involving intimate partners has also increased since 1995. Discrepancies between victim survey and police data can be explained by the fact that women report more serious violence with more severe consequences and are more likely than men to report spousal violence to the police (37 percent). What are the risk indicators of spousal violence? Data from the 1999 GSS indicate that there is a greater risk of experiencing spousal violence for the following:
Due to the limitations of surveys that are conducted only in English and French,
like the GSS and Violence Against Women Survey, the experience of linguistic
minorities and recent immigrants or refugees is not as fully known.
What type of violence is experienced?
Although the overall rates of experiencing spousal abuse for women and men were
similar, the 1999 GSS indicated that the nature and severity of violence suffered
by each were different. For example, women were more likely than men to experience
more severe forms of violence: they were more than twice as likely to report
being beaten (25 percent versus 10 percent), 5 times more likely to be
choked (20 percent versus 4 percent) and twice as likely to have a
gun or knife used against them (13 percent versus 7 percent).[12]
Intimate Partner Homicide
In the ten-year period of 1991-2000, homicides involving intimate partners accounted
for 27 percent of all homicides. During that period, intimate partners
killed 1,056 persons.
In over half of all spousal homicide cases (58 percent), police noted a
history of domestic violence in the family.[13]
Data from the Homicide Survey for 1991-99 indicate that the rates of
spousal homicide for Aboriginal women were more than eight times greater than
for non-Aboriginal women and eighteen times greater for Aboriginal men than
for non-Aboriginal men. The spousal homicide rates were higher for Aboriginal
persons in common-law relationships than for Aboriginal persons in legal marriages:
almost eight times higher for Aboriginal women and six times higher for Aboriginal
men.[14]
In general, the spousal homicide rate declined between 1974 and 2001: by 62 percent
for women from 16.5 to 6.3 women per million couples; and by more than 50 percent
for men from 4.4 to 2.0 men per million couples (p. 9). Declines have been shown
for most age groups, most regions of the country and among the higher risk relationship
types (separated and common-law relationships). Following
fairly steady declines between 1991 and 2000, in 2001 there was a substantial
increase in the number of spousal homicides against women: 69 compared to 52
in 2000. There was no change in the number of wives killing husbands (16 in
both years). Despite this increase, the number of spousal homicides in 2001
was comparable to the average number over the period of 1991-2000.[15]
This overall decline in the rate of spousal homicides in Canada may be due to
changing intimate relationships (for example, the increased average age of first
marriage for men and women, and delayed child rearing) and increasing gender
equality (for example, rising labour force participation among women), as well
as the many different measures undertaken by governments and community groups
to address family violence over the past 20 years. These measures include the
implementation of spousal abuse charging and prosecution policies in all Canadian
jurisdictions, increasing the availability and use of services for battered
women, increasing the availability of treatment programs for abusive partners,
specialized domestic violence courts and various legislative changes including
the introduction of criminal harassment legislation (pp. 12-14).
From 1974-2000, firearms were the most frequently used weapons in spousal homicides.
Women were more likely to be killed with firearms (40 percent versus 26 percent)
and men were more likely to be killed with knives or other sharp objects (58 percent
versus 23 percent). Overall, however, there has been a statistically significant
decline in the proportion of spousal homicides involving firearms from 1974-2000
(a decrease of 77 percent for female victims and 80 percent for male
victims) (p. 11).
When does spousal abuse occur?
UCR2 data for 2000 indicated that, for approximately two-thirds of women and
men, the abuse was inflicted by current spouses (p. 6). Although it is a common
assumption that separation and divorce end the risk of spousal violence, 39 percent
of female victims and 32 percent of male victims in the 1999 GSS reported
the occurrence of violence after separation.[16] Of those who reported post-separation
violence, 24 percent stated that the assaults became more severe and 39 percent
reported that the violence only began after separation.[17]
Female victims (59 percent) were three times more likely than male victims
(20 percent) to report being physically injured during violent encounters
with their former partners.[18]
As well, separated women were at greatest risk of being murdered: rates of spousal
homicide were nine times higher for separated women (38.7 per million separated
women) compared to those who were legally married (4.5 per million married women)
or living common-law (26.4 million).[19]
What is the impact of spousal violence on victims?
The impact of violence on the lives of spousal abuse victims is significant:
28 percent of spousal abuse victims reported in the 1999 GSS that they
had sustained a physical or mental condition or problem that affected their
daily activities (versus 21 percent of the population who were not victims)
(p. 15).
The 1999 GSS indicated that women were three times more likely than men to experience
physical injury as a result of the violence (40 percent of women versus
13 percent of men) and five times more likely than men to require medical
attention as a result of the violence (15 percent of women versus 3 percent
of men) (p. 15).
Aboriginal spousal abuse victims reported experiencing more severe and potentially
life-threatening violence by a current or former partner: 48 percent of
Aboriginal spousal abuse victims versus 31 percent of non-Aboriginal victims.[20]
In addition to the physical impact of spousal violence on victims, the 1999
GSS indicated that the most commonly reported emotional consequence for both
women and men was being upset, confused and frustrated. While 22 percent
of male victims stated that the violence had not greatly affected them, only
5 percent of women reported little impact. Women were much more fearful
than men as a result of the violence (34 percent of women versus 3 percent
of men) and were more likely to state that they feared for the safety of their
children (14 percent versus 2 percent). Women were also more likely
than men to experience sleeping problems (14 percent versus 4 percent),
depression or anxiety attacks (21 percent versus 10 percent) and reduced
self-esteem (23 percent versus 6 percent) (p. 15). Female spousal
abuse victims also reported twice as much use of medications and drugs as male
victims (p. 16).
What is the impact of spousal violence on children?
The 1999 GSS indicated that approximately half a million children, representing
37 percent of all households with spousal violence, were reported to have
heard or witnessed a parent being assaulted in the preceding five-year period.[21] This figure rose to 47 percent for Aboriginal
spousal abuse victims.[22] Children were more likely to witness violence
against their mothers (70 percent) than against their fathers (30 percent).[23]
Further, children were more likely to witness severe acts of violence against
their mothers: 53 percent of women and 12 percent of men feared for
their lives in these incidents.[24]
The 1999 GSS also indicated that in 10 percent of assaults against women
and in 4 percent of assaults against men, a child under the age of 15 years
was harmed or threatened.[25]
Research indicates that children who are exposed to spousal violence may display
signs of emotional, social, cognitive, physical and behavioural problems including
lower levels of social competence; higher rates of depression, worry, frustration
and anxiety; increased likelihood of developing stress-related disorders; decreased
levels of empathy; developmental regression; complaints of physical ailments;
and aggressive behaviour.[26]
There is also evidence to indicate that children who witness spousal violence
are more likely to become a part of a generational cycle of violence: boys who
witness the abuse of their mothers are more likely to subsequently become abusive
in their own relationships; girls who witness the abuse of their mother are
more likely to subsequently enter into abusive relationships.[27]
What are the costs of spousal abuse to Canadian society?
Spousal violence places a significant burden on Canadian society with respect
to supplying and maintaining medical services, social services (including counselling
and emergency shelter services) and criminal justice system services. GSS data
from 1999 indicated the following impacts as a direct result of the violence:
In 1995, a study of selected economic costs of three forms of violence—sexual
assault, woman abuse in intimate partnerships and incest or child sexual abuse—estimated
the partial annual costs of violence against women in four policy areas as follows.
The authors of this study estimated that 87.5 percent of these costs were borne by the state, 11.5 percent by the individual and 0.9 percent by third parties.[29]
b) Prosecution Policy:
As noted, although the form and content of the current policies vary across
the country, they reflect a number of common elements.
i) Charging Policies
a) Test: Charges should be laid where there are reasonable and probable
grounds to believe that an offence has been committed, regardless of the wishes
of the victim. In British Columbia and Quebec, the decision to charge is made
by the Crown. In New Brunswick, the decision to lay charges is made by police
after receiving advice from the Crown. In these provinces, the Crown must also
consider whether it is in the public interest to charge.[44]
b) Investigation: Police officers who respond to spousal assault calls
must conduct a complete investigation and collect all available evidence from
all sources. Some jurisdictions have developed tailored investigation forms
for spousal abuse cases.
c) Peace bonds: Peace bonds or recognizance orders should not be used
in place of charges where the evidence warrants charges.[45]
d) Withdrawal/stay of Charges: Withdrawing or staying of charges falls
within the purview of the Crown.
e) Release of an accused from custody by the officer in charge: Release
of the abusive partner/accused should be made subject to appropriate conditions
including, for example, non-communication orders, firearms prohibitions, and
drug or alcohol prohibitions.[46] Some jurisdictions require victim
notification of the release of the accused as well as of any accompanying conditions.
f) Victims’Services: Most jurisdictions instruct police to advise victims’of available victims’services, to direct them to such services or to do both.
g) Pre-charge Alternative Measures: Two jurisdictions currently permit
pre-charge diversion of spousal abuse cases, in exceptional circumstances, to
Alternative Measures programs formally established under the Criminal Code.
In British Columbia where there is Crown pre-charge approval, such diversion
can only be made on a decision of the Crown and in accordance with specified
criteria. Although Prince Edward Island does not have Crown pre-charge approval,
all referrals to Alternative Measures, whether pre-charge or post-charge, are
approved by the Crown.
The Northwest Territories has a protocol that permits the pre-charge diversion of spousal abuse cases to community justice committees in exceptional circumstances. Pursuant to this protocol, a case may only be diverted on the joint recommendation of the RCMP, the community justice committee and the written consent of the Regional Director for the Department of Justice Canada. Although the protocol exists, the Regional Director has not received any such requests for pre-charge diversion and the RCMP does not consider it as an active policy. This protocol is currently under review. ii) Prosecution Policies a) Test: A spousal abuse case should be prosecuted where there is a reasonable expectation or prospect of conviction (based on the evidence) and where it is in the public interest to prosecute.[47] b) Reluctant and recanting witnesses: In most jurisdictions, the decision to prosecute is made independently of the wishes of the victim. The fact that the victim is reluctant to co-operate with the prosecution of the accused should not be determinative of the decision to prosecute where independent evidence is available. Where a victim is reluctant or uncooperative, Crown counsel should assess the possibility of securing a conviction without the evidence of the victim (for example, by considering the availability of other evidence) and should consult with the victim with a view to seeking her support and co-operation in the prosecution. Compelling the victim to testify or seeking to find a victim in contempt for non-attendance is generally inappropriate and should only be considered in exceptional circumstances. c) Withdrawal/stay of charges: Charges should only be withdrawn or stayed in exceptional circumstances. d) Judicial interim release: Release of the abusive partner or accused should be made subject to appropriate conditions including, for example, non-communication orders, firearms prohibitions, and drug or alcohol prohibitions. Some jurisdictions direct the Crown to oppose release on bail where there is a significant history of abuse, including, for example, cases where there have been previous breaches of court orders. Most jurisdictions direct the Crown to advise victims of the outcome of the bail hearing and of any conditions.[48] e) Contact with the victim: Crown counsel should try to meet the victim in advance of the trial date and should advise the victim of, and direct her to, available victims’assistance services. 4) ASSESSING THE IMPACT OF THE SPOUSAL ABUSE POLICIES The spousal abuse policies for charging and prosecution have been the subject of considerable analysis and evaluation in both Canada and in the United States.[49] The Working Group has reviewed much of this research. It has also tried to obtain the input of frontline criminal justice personnel to assess not only their perspectives on the way the policies are working but also to determine any inconsistencies between the policies, as written and adopted, and their day-to-day operation. In reviewing and assessing the impact of the policies, the Working Group has also considered how they have reflected and responded to the diversity of spousal abuse victims.[50] This body of research indicates that the policies have been both successful and unsuccessful in achieving their objectives. They have also resulted in some unintended negative consequences. Before considering these evaluations, a number of observations must be noted. First, the Working Group was cognizant of the fact that research from jurisdictions outside Canada may not always be directly comparable to Canadian realities. Indeed, this may even be said for research conducted within Canada. For example, British Columbia, Quebec and New Brunswick have pre-charge Crown approval and, as a result, there may be differences between implementation of the policies in these jurisdictions and in those provinces and territories that do not have pre-charge Crown approval. Second, the Working Group immediately recognized that there is no single measure of success. The conclusions of individual pieces of research on the success or failure of the policies often seem to depend on whose opinion, or which policy objective, is being considered. By way of illustration: a police officer’s complaint about the charging policy may have less to do with a perceived failure of the policy to achieve its objectives than with a belief that the policy circumvents the officer’s discretion in individual cases;[51]a Crown Prosecutor’s unhappiness with the prosecution policy may have less to do with complaints about the objective of the criminalization of spousal abuse than with the practical difficulty of prosecuting a case with a recanting or reluctant victim/witness; and a victim’s satisfaction with a pro-charge policy does not necessarily translate into support for a pro-prosecution policy. Last, the Working Group recognized the unique nature of spousal violence. Unlike victims of “stranger” violence, spousal abuse victims often have a relationship that existed not only before, but also endures after, the incident of violence. Over 60 percent of women who flee their abusive partner and take refuge in a shelter will return to their partner and suffer subsequent violence: “domestic violence is by its nature a reoccurring crime with a marked tendency to escalation.”[52] As well, even where the victim has terminated her relationship with the abuser, she may still have a continuing parental relationship with the abuser. Knowing the cyclical nature of spousal abuse, the question is often asked: why does she stay? These are some of the many reasons.[53]
But, no matter what her reasons, she always wants the violence to stop.[54]
The Working Group identified three key objectives of the criminal justice system’s
response to spousal abuse:
Against this backdrop, the Working Group has considered the implementation and
effectiveness of the spousal abuse policies from two perspectives: how successful
the policies have been in treating spousal assault as a criminal matter, and
how well the policies have recognized and responded to the unique nature of
spousal assault as distinct from stranger assault.
i) Pro-Charging Policy
As previously noted, the primary objectives of the charging policy are as follows:
The pro-charging policy has increased the number of incidents reported to police
and the number of charges laid in spousal abuse cases, and has reduced risk
of harm through re-offending.[55]
Increased Reporting
Although the majority of spousal violence victims do not report to police,[56] GSS data from 1999 indicated that 37 percent
of female victims and 15 percent of male victims who reported experiencing
abuse also reported incidents to the police. The different reporting rates may
be due, in part, to the less serious nature of violence experienced by male
victims (p. 9).
Trend analysis of the UCR2 data from 1995 to 2001 revealed a 27 percent
increase in reporting of spousal abuse incidents to participating police agencies.
The 1999 GSS also noted a significant increase in the percentage of women victims
of spousal abuse who reported to police, from 29 percent of women reporting
to the Violence Against Women Survey in 1993 to 37 percent in 1999.
A number of factors may have influenced the increase in reporting including,
for example, increased confidence in the criminal justice system’s ability to
effectively address spousal abuse cases, as well as changes in police reporting
practices, reduced social stigma and greater awareness of the illegality of
spousal violence and of available services.[57]
For 93 percent of women and 79 percent of men, the reason they reported
the spousal abuse to the police was to stop the violence or to receive protection
from the police against the violence (p. 18). For some victims at risk, particularly
those who are socially and economically marginalized, including Aboriginal and
low-income victims, as well as victims in rural or remote communities, police
are often the only source of accessible immediate help.[58]
Police Response
UCR2 data for 2000 indicate that charges were laid in 82 percent of spousal
abuse incidents reported to police; the remaining 18 percent of incidents
were cleared otherwise. In 13 percent of cases, police did not lay charges
at the request of the victim (21 percent for cases involving male victims
and 11 percent for cases involving female victims). Police exercised their
discretion and did not lay charges in 3 percent of all incidents.[59] These proportions have remained relatively
stable since trend data have been available through the UCR2 in 1995.
There are a few reported studies on the issue of police charging practices in
spousal abuse cases. For example, a ten-year study of the pre- and post-charging
policy’s implementation in London, Ontario, revealed that the number of charges
laid by police in spousal abuse cases rose from 2.9 percent in 1979 (pre-policy)
to 67 percent in 1983 and to 89 percent in 1990.[60]
Reduction in Re-offending
Available research offers conflicting findings as to the effect of charging
policies on the reduction of subsequent offending by spousal abusers. Little
is known about whether the charging policy has had any impact on the rate of
arrest of spousal abusers; anecdotal evidence suggests, however, that there
has not been any increase in the number of arrests made in these cases.[61]
One of the primary pieces of research in this area was conducted in Minneapolis
in 1984, which had a pro-arrest rather than a pro-charging policy. It found
that the arrest of an abusive partner reduced the rate of re-offending within
the ensuing six-month period by half when compared to other, less formal police
interventions.[62] Replication
of this study in six U.S. cities, however, revealed less positive findings,
including that arrest of the abuser could, in some cases, increase the incidence
of re-offending when the abuser also presented with other personal characteristics
(e.g., unemployment).[63] A
more recent replication of the same study found, however, that the arrest of
a batterer was consistently related to reduced re-offending and also found no
association between arrest and an increased risk of harm for the victim.[64] A similar decrease in the level
of violence has also been noted in Canada as a result of the pro-charging policy.[65]
How has the implementation of the charging policy been viewed by key actors?
Spousal abuse victims and victims’service providers have expressed strong support
for the pro-charge policy.[66]
For example, a 1996 study on the experience with the mandatory charging policy
in the Yukon reported that 85 percent of victims thought that the mandatory
policy of charging, regardless of the victim’s preferences, was a good one.
A further 68 percent of victims reported that the policy made them more
confident about reporting future incidents.[67] Similarly, a review of the experiences
of service providers working with ethnocultural women victims of spousal abuse
indicates support for the mandatory charging policy. Since it removes responsibility
for the decision to charge from the victim, it underscores the importance of
the societal message that spousal abuse is unacceptable, and it empowers women.[68]
As already noted, the 1999 GSS reported that the reason given by 93 percent
of women victims who reported spousal abuse to police was that they wanted the
violence to end. For these women, calling the police translates into an expectation
that this will make the police attend at the scene, which will in turn, stop
the current incident of violence.[69] Spousal abuse victims clearly want the violence
to end and for most women, this is synonymous with the pro-charging policy;
however, for many victims, it is not synonymous with a pro-prosecution policy.[70]
An unintended negative consequence of the successful implementation of the charging
policy has been its effect on spousal abuse victims who are members of over-criminalized
communities. In particular, Aboriginal, lower income, visible minority and immigrant
women are sometimes more reluctant to call the police in response to spousal
abuse incidents for fear of the repercussions of discriminatory treatment of
their partner, their children or themselves.[71]
Police reaction to the pro-charging policy has been mixed. In the ten-year study
of the pre- and post-charging policy’s implementation in London, Ontario, police
perception that the policy is effective had increased from one third in 1985
(four years after its adoption) to just over one half (52.3 percent) in
1990 (nine years after its adoption). In 1990, while almost one-half (48.1 percent)
of these police officers believed that the policy helped battered women, two-thirds
(64.9 percent) believed that the policy provided an important message to
the community. Lastly, this study found that police officers with more years
of experience and those in supervisory positions held the most positive views
on the policy as compared to constables.[72]
A similar difference in perception between members with more years of experience
and those with less, was found in the Metro (Toronto) Woman Abuse Protocol Project.
In this study, the 6 of 17 officers who supported the policy had a minimum of
seven years of experience.[73] This study also found that a common criticism of the policy
is that it inappropriately limits police discretion. Most of the officers interviewed
in this study felt that charging an abuser (i.e., a legal response) was not
always the best solution to a complex problem that was still viewed by some
respondents as something other than a criminal matter.[74]
Other researchers have noted similar findings of the persistence of police attitudes
that prevent a positive police response to spousal abuse calls, particularly
where the victim does not meet their expectation of a helpless and blameless
victim deserving of police assistance.[75]
Some researchers have noted that notwithstanding police concerns about their
lack of discretion in spousal abuse cases, in fact, some police officers continue
to exercise discretion with respect to charging abusers for breach of protection
orders in these cases. For example, a study from 1993-94 of the police in Delta,
British Columbia, found that despite a zero tolerance policy, some police officers
rarely charged an offender for breach of a protection order even where they
were presented with a copy of a current protection order, where the offender
was still at the scene and where the victim wanted the offender arrested.[76]
Some members of the police who are supportive of the pro-charging policy have
nonetheless expressed frustration with it. The frustration often flows from
the knowledge that despite their best efforts to support the victim and to comply
with the policy, there is a significant possibility that the victim will recant
and the Crown prosecutor will stay or withdraw the charge.
Another criticism of the lack of police discretion in individual cases has been
that strict adherence to the pro-charging policy requires police to lay dual
charges, i.e., to charge both parties, irrespective of whether one party’s violence
was self-defensive. American research has found that “dual arrests/charges”
have dramatically increased as a direct result of mandatory charging and arrest
policies.[77]
Available Canadian research confirms that dual charging in spousal abuse cases
occurs in Canada. For example, the incidence of dual arrests for spousal abuse
in Winnipeg was 6 percent (166 cases) in 1992-93 and eight percent (208
cases) in 1996-97, for an average of seven percent through the whole period.[78]
In Alberta, dual arrests were made in four percent of cases in 1999, in six
percent of cases in 2000 and in five percent of cases in 2001.
Some jurisdictions have responded to this issue by adopting “primary aggressor”
models.[79] Such a model typically requires the police
to make reasonable efforts to identify the primary aggressor in any spousal
abuse incident including, for example, whether either person acted in self-defence
(as shown by offensive and self-defensive injuries), the history of violence
between the persons, and differences in the physical size between the persons.
The Manitoba Lavoie Inquiry recommended the adoption of a primary aggressor
rule.[80] Another suggested
possible response to this issue is to require Crown review and approval of any
counter allegation of spousal violence.[81]
ii) Conclusions
The pro-charging policies adopted in Canada during the 1980s have significantly
contributed to the strengthening of the criminal justice system’s response to
spousal abuse. Research on spousal abuse confirms that there has been an increase
in the reporting of spousal abuse incidents as well as in the number of charges
laid in these cases. It has also demonstrated a positive impact in reducing
the incidence of re-offending.
While it is not possible to attribute the improved criminal justice system response
solely to the adoption of the pro-charging policies, clearly the policies have
played an integral role toward this end. Although it is also true that the pro-charging
policies have resulted in some unintended negative consequences, the majority
of spousal abuse victims nonetheless express strong support for the pro-charge
policy. A spousal abuse victim needs to know that if she calls the police to
report an incident of violence, the police will come and will, at a minimum,
stop the immediate incident of violence. The pro-charging policy ensures a strong
and consistent first line of response by the criminal justice system that contributes
to ensuring the safety and security of spousal abuse victims.
The pro-charging policy seeks to ensure that the police treat spousal abuse
as a criminal matter and to lay charges where there are reasonable grounds to
believe that an offence has been committed and, in those jurisdictions with
Crown pre-charge approval, it is in the public interest to lay a charge. Measures
that contribute to law enforcement’s understanding of and sensitivity to the
unique dynamics of spousal abuse help to ensure implementation of the policy
in a manner consistent with its objectives.
iii) Recommendations
The Working Group recommends the retention of the current pro-charging policies
for spousal abuse cases. In this regard, the current test should continue to
apply, namely, that a charge should be laid where there are reasonable grounds
to believe that an offence has been committed and, in jurisdictions with Crown
pre-charge approval, when it is in the public interest to lay a charge.[82]
These policies are often described as “pro-charging” policies; nonetheless,
they are, in fact, the applicable standards for all criminal conduct. Their
specific application to spousal abuse cases played a pivotal role in helping
to make the critical distinction between the criminal justice system’s treatment
of spousal abuse as a “criminal matter” and its historical treatment of
spousal abuse as a “private matter.”
The Working Group also recommends that the elaboration of pro-charging policies
for spousal abuse specifically address, at a minimum, the following key issues.
iv) Pro-Prosecution Policy
As already noted, the pro-prosecution policy has several objectives:
Research conducted shortly after the adoption of the policy indicates some level
of success in reducing the case attrition rate in spousal assault cases. In
the London, Ontario, ten-year study, researchers found that prior to the adoption
of the policy, 38.4 percent of charges were dismissed or withdrawn; in
1983 (two years after the adoption of the policy), this rate had decreased to
16.4 percent and had decreased further to 10.9 percent by 1990.[84]
A 1988 Saskatchewan study on the rate of prosecution of spousal abuse cases
following adoption of the policy reported that 89 percent of charges laid
proceeded to court. Of these cases, charges were stayed in 5 percent of
cases and withdrawn in 6 percent of cases.[85]
A review of the processing of spousal abuse cases in the Winnipeg Family Violence
Court from 1992-97 found that 46 percent of charges were stayed; the next
most frequent outcome was the entering of guilty pleas in 43 percent of
cases. This study concluded that the prosecution policy (in the case of Manitoba,
a zero tolerance policy) served two functions: to catch most of the cases at
the start of the process; and to enable the exercise of prosecutorial discretion
in applying the policy and to thereby weed out cases such as those for which
there was no reasonable prospect of conviction and therefore no reasonable grounds
to proceed to court (stayed).[86]
As to whether the prosecution policy has been successful in promoting victim
co-operation in the prosecution of offences, the most frequently cited reason
for staying or withdrawing spousal abuse charges is the reluctance of the witness
and the lack of other evidence.[87]
Some Crown prosecutors have commented that the reluctant female spousal abuse
victim is more common than not and is a matter of considerable frustration for
them.[88] Faced with this reality, it
is not surprising to learn that some Crown prosecutors find the pro-prosecution
policy to be rigid and an unreasonable constraint on their exercise of discretion,
to be impractical and to improperly treat all spousal assault cases the same.[89]
One innovative response to the reluctant witness has been developed in the Winnipeg
Family Violence Court. Where a victim indicates that she will not testify because
she does not want her spouse incarcerated and when she indicates that her ultimate
wish is for the violence to end, the Crown will “testimony bargain,” i.e.,
the Crown may offer to drop the more serious charge that might result in imprisonment
and recommend probation and court-ordered treatment for the offender in exchange
for her testimony. If accepted, defence counsel is advised that the victim will
testify, which often prompts the accused to plead guilty.[90]
Another response is to more actively and effectively support the victim throughout
the prosecution. One recent study found that the two most important determinants
of victim co-operation in the prosecution of a spousal abuse case were the availability
of victim/witness assistance and support and the availability of videotaped
testimony. This same study also found that when a prosecutor perceives a victim
to be co-operative, the prosecutor is seven times more likely to prosecute that
case than one involving a victim who is perceived to be uncooperative.[91]
Faced with a reluctant, uncooperative victim, Crown prosecutors will stay or
withdraw the charges absent other reliable and admissible evidence. Such independent
evidence might include statements from other witnesses, 911 tape recordings,
medical records of injuries sustained, photographs or videotape of the scene
on arrival by police at the scene and of the victim, and other physical evidence.
While most spousal abuse victims are very supportive of a pro-charging policy,
primarily because it serves to stop the violence at least in the immediate instance,
many victims have expressed a desire for a more flexible prosecution policy
that better addresses the needs and realities of victims and their families.[92]
In a survey of 74 female spousal abuse victims in Abbotsford, British Columbia,
in 2000, 86 percent of victims indicated support for the charging policy.
However, 40 percent of victims did not wish to proceed with the prosecution;
of these victims, three out of four cited, as a reason for non-cooperation,
that they wanted to reconcile with the offender and almost one-third wanted
the non-communication order dropped. Also, 30 percent of all victims reported
experiencing financial hardship following the arrest of the abuser.[93]
Other researchers have identified additional factors that influence a spousal
abuse victim’s level of co-operation with the prosecution. Victim co-operation
is more likely when:
v) Conclusions
Experience with the pro-prosecution policy for spousal abuse indicates that
its test is not uniformly interpreted by those within and outside the criminal
justice system, which, in turn, has resulted in mixed views on the success of
the policy.
Those who interpret the policy as requiring the rigorous prosecution of all
spousal abuse cases, irrespective of any other factors, are more likely to conclude
that the policy has not been as effective as initially hoped. Those who interpret
the policy as requiring the prosecution of all spousal abuse cases where, based
on all of the evidence, there is a reasonable prospect of conviction and it
is in the public interest to prosecute, are more likely to conclude that the
policy has had a positive impact in strengthening the criminal justice system’s
response to spousal abuse. The Working Group supports the latter interpretation
and perspective.
The research clearly documents some frustrations with the policy by prosecutors,
victims and the public alike. Some prosecutors express unhappiness about being
expected to prosecute cases absent a co-operative victim/witness. Some victims
do not want to support a prosecution against, or to testify against, a partner
with whom they have reconciled. Some victims, on the other hand, are of the
view that the criminal justice system still does not treat spousal abuse seriously
enough, as reflected by the sentences imposed on spousal abusers. As well, members
of the public often voice opposition to a process or policy that does not uniformly
lead to the traditional criminal justice response namely, incarceration.
The Working Group believes that the pro-prosecution policy, interpreted and
applied in the intended manner, will help to ensure a strong and consistent
criminal justice system response to spousal abuse. Other measures that will
contribute to the effectiveness of the policy include:
vi) Recommendations
The Working Group recommends the retention of the current
pro-prosecution policies for spousal abuse. In this regard, the current test
should continue to apply, namely, that spousal abuse cases should be prosecuted
where, based on all of the evidence, there is a reasonable prospect of conviction
and it is in the public interest to prosecute.[95]
These policies are often described as “pro-prosecution” policies; nonetheless,
they are, in fact, the applicable standards for all criminal conduct. Their
specific application to spousal abuse cases played a pivotal role in helping
to make the critical distinction between the criminal justice system’s treatment
of spousal abuse as a “criminal matter” and its historical treatment of spousal
abuse as a “private matter.”
The Working Group also recommends that the elaboration of pro-prosecution policies
for spousal abuse specifically address, at a minimum, the following issues.
5) USE OF ALTERNATIVE JUSTICE PROCESSES IN SPOUSAL ABUSE CASES
The past two decades have seen a number of reforms to the criminal law that
reflect a growing interest in using alternative processes to deal with criminal
conduct and in exploring alternative sentencing options for offenders. For example,
young offenders legislation was amended in 1985 to permit the use of Alternative
Measures.[98] In 1996, the Criminal
Code was amended to permit the use of formal Alternative Measures programs
to deal with adult offenders.[99] This reform, together with the
emergence of a strong interest in restorative justice processes, generally,
has increased public and government interest in exploring alternatives to traditional
justice processes to deal with offending behaviour, including spousal abuse.
The Working Group has reviewed the use of these alternative justice processes
in spousal abuse cases, including their compatibility with the pro-charging
and pro-prosecution spousal abuse policies.
i) Alternative Measures
Objectives of Alternative Measures
When the Criminal Code was amended in 1996 to permit the use of Alternative
Measures for adult offenders, these amendments were described as having two
primary objectives: “to prevent criminal behaviour and to avoid the harm that
can sometimes be done when minor offenders are dealt with through the courts.”[100] As a result, where it is
consistent with the need to protect the public, these provisions allow for the
diversion of “first-time or less-serious offenders” from the courts to thereby
“free up valuable prosecutorial and court resources to deal with more serious
cases.”[101]
Over time and as experience with these provisions continues to grow, jurisdictions
have begun to consider the merits of using Alternative Measures for repeat and
more serious offenders.
How Do Alternative Measures Work?
Section 717 of the Criminal Code permits the use of Alternative Measures
when doing so is not inconsistent with the protection of society and where the
following conditions are met:
An offender can be referred to an Alternative Measures program either before
or after a charge has been laid. The administration of an Alternative Measure
does not require court supervision although, if the person does not complete
the measure successfully, he or she may ultimately be charged or the charge
may be prosecuted.[102]
Offenders who successfully complete Alternative Measures do not have a record
of conviction against them.[103] Records made of the Alternative
Measure followed and the offender’s response to it cannot be introduced into
evidence more than two years after the end of the Alternative Measures process,
except for sentencing proceedings in accordance with subsection 721(3) of the
Criminal Code.
Alternative Measures programs usually include an out-of-court mechanism for
determining the consequences to the offender for the offence. This can occur
through a number of different ways, including through an intake interview and
assessment, followed by a review by a justice committee, family group conference
or mediated dispute resolution process, or by a direct referral to an appropriate
program. Ordinarily, the offender enters into an agreement in which he or she
promises to do certain things in consequence of his or her behaviour. That agreement
might include making an apology, participating in a treatment program, making
restitution, serving the community or working with a counsellor or elder.[104]
Existing Alternative Measures Programs and Policies
The federal government and the majority of the provinces have approved Alternative
Measures programs in accordance with the provisions of the Criminal Code.
The Alternative Measures programs expressly exclude spousal abuse cases
in all but three jurisdictions: the Northwest Territories, British Columbia
and Prince Edward Island. Manitoba, Ontario, Quebec and Newfoundland and Labrador
do not have Alternative Measures programs. The constitutionality of Nova Scotia’s
exclusion of spousal abuse cases was unsuccessfully challenged recently.[105]
As previously noted, a protocol exists in some Northwest Territories communities
that contemplates pre-charge diversion of spousal abuse cases to community justice
committees in exceptional circumstances and on the joint recommendation of the
RCMP, the community justice committee and the written consent of the Regional
Director for the Department of Justice Canada. There have been no pre-charge
diversion requests to date. The protocol is currently being reviewed by the
Northwest Territories, the federal government, and the RCMP.
British Columbia and Prince Edward Island allow for the diversion of spousal
assault cases to an Alternative Measures program, including pre-charge, in exceptional
cases. Neither jurisdiction defines what constitutes “exceptional” circumstances.
In British Columbia, where there is Crown pre-charge approval, the diversion
of any cases including spousal abuse cases can only occur on decision of the
Crown and in accordance with specified criteria. Although Prince Edward Island
does not have Crown pre-charge approval, all referrals to Alternative Measures,
whether pre-charge or post-charge, must be approved by the Crown.
Few cases have been diverted to Alternative Measures in these two jurisdictions.
The results of a review by Prince Edward Island for the calendar years 1999,
2000 and 2001 indicate that of the total of 556 cases diverted to Alternative
Measures processes, only twenty-two cases (four percent) involved spousal abuse:[106]
In British Columbia, approximately one percent of all cases diverted to Alternative
Measures processes, involved spousal abuse cases, pre-charge:
Of these cases, approximately half involved female accused, of which only two
cases involved female accused who claimed to have acted in self-defence.
ii) Restorative Justice Processes
Restorative justice is a term that is often used. There is not, however, a clear,
common definition of the term across Canada.[107] For the purposes of this
review, the Working Group uses the term to describe voluntary processes that
complement, support or are alternatives to the traditional criminal justice
process and that are available where the offender is willing to accept responsibility
for his conduct and to work with the community (including the victim) to repair
the harm done and to restore harmony.[108]
Some alternative processes may be restorative in nature but are not necessarily
restorative justice processes including, for example, such alternative processes
as circle sentencing and victim-offender contact facilitated by correctional
authorities. Restorative justice processes offer a range of responses, including
intervention at different stages both outside (pre-charge) and within (post-charge)
the formal justice system.[109] Unlike Alternative Measures,
the rules and procedures that apply to restorative justice processes are not
prescribed by the Criminal Code.
There is anecdotal evidence to suggest that some spousal abuse cases are being
diverted, both pre-charge and post-charge, to alternative justice processes
(i.e., to Alternative Measures or to restorative justice processes). In some
instances, this is occurring in a manner inconsistent with the jurisdiction’s
prevailing program or policy permitting diversion of spousal abuse cases; in
others, it is occurring notwithstanding the jurisdiction’s express policy against
such diversion.
Support for the Use of Alternative Measures and Restorative Justice Processes
in Spousal Abuse Cases
The traditional criminal justice response of charging, prosecuting and incarcerating
an offender is not always responsive to the realities of a spousal abuse case.
For example, a traditional criminal justice response that results in the offender’s
incarceration may not be the best outcome for the victim where she has reconciled
with the offender and where she is dependent on the offender as the primary
source of income for their family. Similarly, a traditional criminal justice
response that prohibits any contact between the offender and victim may not
be practical where the parties reside in a rural, remote or small urban centre
where it may not be possible for them to completely avoid contact with each
other.
Alternative justice approaches are sometimes advocated by police and prosecutors
who are frustrated by a pro-charge/pro-prosecution policy, which they believe
does not adequately protect all spousal abuse victims or recognize the difficulties
inherent in prosecuting these cases. For example, they believe that in cases
where it is likely that a charge will be stayed, withdrawn or dismissed because
the victim is uncooperative and refuses to testify, an alternative justice response
may still be a better result than, for example, the usual alternative criminal
justice response of a peace bond. In such circumstances, participation in an
alternative process might provide some additional measure of protection to the
victim and assurance to the community that some action has been taken to prevent
and deter the behaviour. If nothing else, positive participation in such processes
might keep the victim engaged in the system and willing to turn to police and
the courts in the event that there is a subsequent incident of abuse.
As well, some argue that the use of alternative justice responses in spousal
abuse cases is more consistent with the recent sentencing reforms, including
reduced reliance on criminal courts and less use of traditional sentencing options,
such as incarceration.
Thus, alternative justice responses are sometimes perceived to be better able
to:
Opposition to the Use of Alternative Measures and Restorative Justice Processes
in Spousal Abuse Cases
The genesis for much of the concern with the use of alternative justice responses
in spousal abuse cases is the special and peculiar dynamic inherent in spousal
abuse cases as well as the justice system’s historical response to these cases.
Those who oppose the diversion of spousal abuse cases to Alternative Measures
processes or the referral of spousal abuse cases to restorative justice processes
generally do so in the belief that:
iii) Conclusions
The Working Group acknowledges the need to continue to strengthen the existing
criminal justice system’s response to spousal abuse cases, as well as to continue
to explore opportunities to develop new, effective alternative justice responses.
However, in considering new alternative justice responses, it is imperative
to understand both the dynamics of spousal abuse as well as the successes and
failures of the traditional justice response.
There is reason to be encouraged by some of the early, positive anecdotal experiences
with alternative processes in addressing other types of criminal conduct. However,
there is a paucity of evidence-based research to not only substantiate the effectiveness
of these alternative responses with respect to spousal abuse cases, including
ensuring the safety and security of the spousal abuse victim and her children,
but also to assess these responses vis-à-vis the traditional system’s response.
iv) Recommendations
The majority of the Working Group recommends against the
use of alternative justice processes in spousal abuse cases except in the following
circumstances:
The Working Group also recommends that approval of the use of alternative justice
processes in spousal abuse cases needs to be supported by the following:
Quebec does not have any official Alternative Measures programs and, accordingly,
takes no position on the use of these programs in spousal abuse cases.
1) CO-ORDINATING MECHANISMS
i) Research and Best Practices
Reforms to improve society’s response to spousal abuse have included a number
of components: development and implementation of pro-charge and pro-prosecution
policies; training programs for criminal justice professionals; support and
advocacy for victims; court-mandated programs for batterers; and public education
initiatives aimed at conveying the message that family violence is unacceptable.
It is widely acknowledged that because of the nature and complexity of spousal
abuse, legal controls or sanctions alone are not a sufficient response to these
behaviours. A number of studies have concluded that formal (legal) sanctions
are more effective when reinforced by informal social controls and are weakened
when those controls are absent.[112] Similarly, evaluations of extra-legal responses
(such as victim support programs and batterers programs) independent of other
community context have produced mixed results.
Concerns about the fragmentation of the response to domestic violence and the
absence of a shared vision and public accountability have led to the development
of co-ordinated community responses.
Community intervention projects are advocacy projects, external to the criminal
justice system and operated by non-profit agencies, that focus on improving
and co-ordinating institutional responses to domestic violence within a community
by doing the following:
The Quincy District Court in Massachusetts and the San Francisco Family Violence
Project are examples of reform projects based on the criminal justice system.
Components of the model include pro-arrest and pro-prosecution policies; closely
supervised probation that includes batterer treatment; use of restraining orders;
victim advocacy; training; prevention activities; and public policy reform.[114]
Co-ordinating councils provide a forum for interagency co-ordination and can
include representatives from community organizations, government and criminal
justice agencies. The San Diego Domestic Violence Council, for example, has
representatives from more than 200 agencies that provide services to victims
and offenders.[115] State-wide co-ordinating councils play an
important role in the response to domestic violence through assessment of the
legal justice and social systems involved, policy development and planning.
Research on the impact of co-ordinated community responses has produced some
promising results. Significant increases in arrests, in successful prosecutions
and in the number of men ordered to counselling were reported following the
initiation of three community intervention projects in the United States.[116]
Adoption of a domestic violence protocol that included a pro-arrest policy,
proactive prosecution, victim advocacy and sentencing guidelines that included
mandatory treatment for batterers resulted in a significant decrease in recidivism
that was maintained over an 18-month follow-up period.
Evaluation data in Canada suggest that an integrated strategy has a positive
impact on criminal justice system performance. In Nova Scotia, data comparing
the performance of the criminal justice system before and after the introduction
of a pro-charge, pro-prosecution policy framework (which included training and
accountability measures) demonstrated significant improvement in key performance
indicators such as charge, arrest and conviction rates.[117]
In Quebec, efforts to enhance integration and co-ordination throughout the criminal
justice process include verifying the consistency of conditions imposed on violent
spouses at various stages of the judicial and correctional systems. This verification
is conducted by the Correctional Services of Quebec.
ii) Co-ordinating Mechanisms in Canadian Jurisdictions
One of the earliest models of co-ordination was implemented in London, Ontario,
where the first research studies on the impact of charge and arrest policies
in Canadian jurisdictions were carried out. Most Canadian jurisdictions have
now implemented some form of local and provincial co-ordinating mechanisms to
address domestic violence through interdepartmental committees, local interagency
committees or both. A cross-jurisdictional overview of co-ordinating structures
is provided in section VI of this Report.
A number of jurisdictions have signalled commitment to the issue of family violence
at the highest level of government, establishing, for example, the Premier’s
Action Committee on Family Violence Prevention (Prince Edward Island), the Committee
of Ministers (Newfoundland and Labrador), the Inter-Ministerial Co-ordinating
Committee on Spousal, Family and Sexual Violence (Quebec), and the Ministers’
Working Group on Violence Against Women (New Brunswick). Most jurisdictions
have constituted interdepartmental committees, composed of senior government
(and sometimes community) representatives to promote a multi-disciplinary approach
to domestic violence. The effectiveness of these structures varies according
to the strength of the links among departments and the priority such initiatives
are given within the overall context of government programs.
In some cases, special short-term structures are established to provide advice
on the implementation of new programs or strategies. For example, the Joint
Interministerial Committee on Domestic Violence in Ontario completed its five-year
report and provided advice on a provincial strategy to respond to domestic violence.
The Domestic Violence Justice Strategy established an interministerial group
of staff officials to oversee some of the recommendations. Following implementation,
the short-term structures may be incorporated into program areas to continue
the co-ordination.
In some jurisdictions, a specific office has been created to provide leadership
and serve as a focal point for co-ordination of family violence activities.
Alberta, for example, established an Office for the Prevention of Family Violence
in 1984, the first of its kind in Canada. Until 2000, Nova Scotia maintained
an interdepartmental, multi-disciplinary Family Violence Prevention Initiative
with a full-time co-ordinator, but this was disbanded as a result of budget
restraint. The model included departmental family violence committees, a government-community
co-ordinating committee, local interagency co-ordinating committees, and the
Deputy Ministers Committee on Social Policy to which the initiative reported
in an effort to co-ordinate policy across sectoral boundaries. In Ontario, the
Victim Services Division within the Ministry of the Attorney General not only
integrates victim services from various justice ministries, but also co-ordinates
the government’s Domestic Violence Justice Strategy and its related programs.
New Brunswick has established within its Executive Office a Women’s Issues Branch,
which co-ordinates the response of the government to 59 recommendations by the
Ministers’ Working Group on Violence Against Women.
In most jurisdictions, regional or local committees have been established, generally
with representation from the criminal justice system and community organizations
and sometimes with representatives from other disciplines, such as education,
social services and health. These committees promote the implementation of a
co-ordinated community response.
iii) Elements of an Effective Response
In her review of the existing co-ordinating mechanisms in provincial and territorial
jurisdictions, Carolyn Marshall offers the following observations:
This insight into the need to support responsibility with the authority to make
it happen speaks to the need for long-term sustainability and senior management
commitment. These are inseparable and fundamental.
An effective co-ordinated response requires leadership and a focal point of
co-ordination of government family violence initiatives, along with the following:
Co-ordination needs to occur across policy sectors (social, justice, education
and health) and at all levels within each jurisdiction: at the provincial level
(to establish a policy framework); at the local community level (to co-ordinate
services and to identify needs, gaps and solutions); and at the individual level
(to provide effective case management and conferencing mechanisms).
iv) Challenges
There is increasing recognition that a co-ordinated response is required—one
that integrates criminal justice, social service, mental health and community
responses.[119] The fact that this goal has been difficult
to achieve is not surprising. For one thing, criminal justice institutions are
asked to make links to social services agencies in domestic violence cases that
they are not asked to make in other types of crimes. Traditionally, the overriding
objective of the criminal justice system has been the detection and sanction
of perpetrators of crime. Reforms that address empowerment and support of victims
have challenged the legal system’s culture, processes and priorities. The ambiguity
of goals can cause difficulty at the operational level for police and the Crown.[120]
The challenge to jurisdictions in adopting models of co-ordination is to create
an effective model and vest it with sufficient authority and support to ensure
that large and unwieldy systems co-ordinate their responses. Jurisdictions should
be under no illusion that co-ordination and partnership are easy. They are time
consuming and different philosophical frameworks and departmental priorities
augment the challenges. Most difficult, however, is the challenge of ensuring
a sustainable response to spousal abuse in the absence of an overall co-ordinated
structure or model.
v) Recommendations
Specific initiatives will continue to have limited impact without a co-ordinated
and consistent broad-based policy response across sectors. It is recognized
that the justice system cannot, and should not, address this problem on its
own. Uncoordinated efforts will continue to result in waste of scarce resources,
duplication of effort, disillusionment of staff working within systems, unmet
public expectations and, most detrimentally, compromised victim protection.
The lack of co-ordination undermines the capacity of the justice system and
other relevant social, health and education services to prevent and respond
to family violence. An integrated, holistic, co-ordinated response with a shared
vision is the most promising means of producing a synergistic effect and an
overall reduction of violent behaviour.
Co-ordination and Intersectoral Collaboration
It is recommended that jurisdictions support and strengthen, with senior level
commitment, co-ordination of initiatives to respond to family violence within
and outside departments of justice that include multiple government and community
stakeholders. Models of co-ordination may differ among jurisdictions but should
incorporate the key elements of an effective response identified above.
2) DOMESTIC VIOLENCE COURTS
i) Research and Best Practices
Domestic violence cases differ in many important respects from those involving
extrafamilial violence, as has been noted above. Many observers, internal and
external to the criminal justice system, argue that the response by police,
prosecutors and the judiciary has been inadequate to meet the needs of the victims
in these cases. The criminal justice system has traditionally been focussed
on incidents occurring between strangers and, not surprisingly, the introduction
of family relationships into this traditional paradigm poses challenges. Of
these challenges, observers cite the high proportion of recanting and reluctant
victims/witnesses and the ambiguous impacts of dispositions on perpetrators
and victims. Further, in some jurisdictions there is a concern that systemic
pressure on the courts prevents a thorough hearing of domestic violence cases.
Domestic violence courts have been established to permit a focus on the special
nature of these cases by court officials who have an understanding of the dynamics
of spousal abuse. Systems or protocols have been developed to support co-ordination
within the justice process and beyond in a way that addresses the dynamics of
domestic violence within a context of specially tailored court case management
strategies.
In Canada, a number of jurisdictions have implemented specialized courts or
court processes to handle cases of spousal/partner violence.[121]
ii) Winnipeg Family Violence Court
In 1990, Manitoba established the first specialized family violence court in
Winnipeg. The five components of the court are:
The three goals of the court are to expedite court processing, to increase victim
co-operation and reduce case attrition, and to provide appropriate sentencing
that would protect victims, such as treatment for abusers and offender monitoring
through probation supervision.[122]
There is evidence to suggest the court has had some success with two of these
goals. Court processing time averaged three months despite significant increases
in case volumes. Regarding sentencing, the number of cases resulting in probation
supervision tripled and those resulting in jail sentences doubled, while fines
and conditional sentences declined in the first two years of operation. Court-mandated
treatment (for abusive behaviour) was a condition for about 25 percent
of all persons sentenced in the court.
During the first four years of operation, the number of spousal abuse cases
rose dramatically (there was a 229 percent increase from 1989 to 1993-94)
but it has since levelled off. The stay rate increased significantly from 22 percent
in the first year of operation to 46 percent in 1997. This increase has
been attributed to the shift in discretion from police to the Crown in determining
whether a case proceeds, as well as to Crown policy, which, while emphasizing
vigorous prosecution, permits the Crown not to proceed “at the expense of the
victim.” In an evaluation of the specialized court, the evaluator argued that
“this dual and contradictory mandate comes closer to reflecting the complex
nature of domestic violence than the older, simplistic standard that equates
success with conviction.”[123]
It is suggested that it may take victims several contacts with the justice system
before they are ready to testify and view the courts as a resource. Others are
troubled by the high stay rate in that the offender is not held accountable
for his behaviour (in that he does not have a criminal record) and is not obliged
to undergo treatment.[124]
iii) Ontario Domestic Violence Courts Program
Ontario has introduced a comprehensive, province-wide Domestic Violence Justice
Strategy in response to the May-Iles Inquest and the 1999 recommendations of
the Joint Committee on Domestic Violence.
In early 1997, Ontario began piloting two specialized courts for domestic violence
cases in Toronto: one in North York (an early intervention model) and one in
downtown Toronto (a co-ordinated prosecution model). In 1997 -98, these pilots
were expanded to six other sites, and then the models were combined in all sites.
The four objectives of these courts are to intervene early in domestic violence
situations; to provide better support to victims throughout the criminal justice
process; to more effectively prosecute these cases; and to hold offenders accountable
for their behaviour.
The approach reflected in the two models is now being combined in 16 large centres
that are implementing this specialized court process:
The former, often used in situations where the victim and offender wish to reconcile,
permits the accused to plead guilty and, as a condition of bail, be ordered
to attend a Partner Assault Response (PAR) program. A specialized Crown Prosecutor
does the screening. The Victim/Witness Assistance Program consults with the
victim and provides information and referrals to community resources. On completion
by the offender, the PAR program provides a report to the Crown. If satisfactory,
that report can be considered as a mitigating factor in sentencing. The Crown
usually recommends a conditional discharge. If the accused does not successfully
complete the program, bail conditions are considered to have been breached,
and the individual can be processed by the prosecution stream.
The co-ordinated prosecution stream focuses on the collection of corroborating
evidence, in addition to victim testimony (such as 9-1-1 tapes, photos
of injuries or damage, medical reports, witness testimony, and audio or videotaped
victim statements).
As of February 2000, approximately 4,500 individuals had been processed through
these courts: 76 percent in the prosecution sites and 24 percent in
the early intervention sites. Of these cases, 69 percent resulted in a
guilty disposition (72 percent at the early intervention sites and 68 percent
at the prosecution sites). Overall, 22 percent of the cases were withdrawn.[125]
Moyer and Associates evaluated the initial 16 to 18 months of the Domestic Violence
Courts (DVC) Program.[126] DVC cases in six DVC sites
were compared to matched sample cases handled in the same six sites in the pre-project
period.[127] In addition,
victims of domestic violence in Kingston and Barrie were interviewed to determine
whether or not the services provided and attitudes of victims in these sites
differed from those in the DVC sites. The evaluators caution that their findings
were a snapshot of the early functioning of the models and may not be representative
of the longer term operation of the courts.
At each site, more evidence of some type was gathered and respondents agreed
that police investigations had improved, at least to some degree. In the majority
of sites, case processing times decreased significantly. As all participants
in the early intervention programs pleaded guilty, the proportion of guilty
pleas increased significantly in these sites compared to the pre-project period.
Results were mixed in the co-ordinated prosecution sites. Although there had
been an expectation that a greater proportion of offenders would be referred
to specialized programs for abusers, no definitive evidence of this emerged.
The majority of victims in the early intervention sites met with or had been
contacted by the Crown or the Victim/Witness Assistance Program (VWAP) soon
after the incident. In the co-ordinated prosecution sites, victims did not report
being any better prepared to testify than victims in the comparison sites. However,
60 percent who testified said they had been sufficiently prepared. Victims
in the early intervention sites were significantly more likely to be satisfied
with case outcomes than were other victims (80 percent reported satisfaction).
For the most part, these victims were pleased that their abusers would receive
counselling but not the stigma of a criminal record. In the co-ordinated prosecution
sites, victim satisfaction with case outcome ranged from 42 percent to 64 percent.
There were few differences in victims feelings of fair treatment, support and
safety between project victims and those in comparison sites. Most victims in
all sites believed they had been treated fairly and had received adequate support.
Overall, there were fewer referrals to the early intervention projects than
expected. Evaluators hypothesize that there was little incentive to participate
because first offenders typically received a conditional discharge before the
project was implemented and 50 percent had charges withdrawn, stayed or
dismissed. In the co-ordinated prosecution sites, there were concerns that the
continuity of Crown Prosecutors from initiation to completion of a case was
not as steady as anticipated. Referral rates to abusive partner treatment programs
were less than anticipated and completion rates ranged from 54 percent to 91 percent.
The need for increased resources for the justice system components and community
agencies offering services to victims and perpetrators was noted, as was the
need for more training. The evaluators recommended improved co-ordination among
all sectors of the justice system responding to domestic violence, from the
earliest planning stages of the DVCs and throughout implementation. The need
was noted for enhanced accountability mechanisms to monitor the behaviour of
perpetrators and ensure victim safety.
Since the submission of the Moyer report, many of the findings and recommendations
have been addressed as the Domestic Violence Court Program continues to roll
out DVCs across the rest of Ontario.
The justice ministries of Ontario established an Assistant Deputy Minister Provincial
Oversight Committee to facilitate intersectoral problem-solving; increased resources
for Crown Prosecutors, VWAPs and PAR programs; a training plan for all components
of the justice system and justice partners; enhanced policies and procedures;
and a blending of the best elements of the early intervention and co-ordinated
prosecution models to form a single program model.
To date, 20 sites have implemented a specialized DVC process. Ontario has committed
to expanding this specialized process on a province-wide basis. All 54 court
jurisdictions will have either a specialized court with designated staff to
handle domestic violence cases or a specialized process for doing so. Regardless
of size, all jurisdictions will have a specialized process with the following
components:
In medium-sized and small rural sites, these components may be implemented differently
based on the volume of cases and the size of the jurisdiction. For example,
rather than designated staff or a dedicated courtroom, specially trained staff
may be available.
iv) Yukon Domestic Violence Treatment Option
The Domestic Violence Treatment Option (DVTO) of the Yukon Territorial Court
was established in 2000. The goals of the program are to encourage more
disclosures of domestic violence; to provide for early interventions; to
hold offenders accountable in a meaningful way; to reduce the high collapse
rate of court cases; to provide a treatment option to offenders under the close
supervision of the court and treatment professionals; and to protect and support
complainants.
Operation of the DVTO is based on the following principles:
The DVTO sitting occurs one afternoon every other week. Following the laying
of a charge for a domestic violence offence, if the accused accepts responsibility,
he or she can apply to participate in the DVTO. The case is adjourned for two
weeks so that Spousal Assault Program (SAP) counsellors can complete an assessment.
If the accused is accepted for SAP counselling and chooses to proceed through
the DVTO court, the individual enters a formal plea of guilty. If the court
so orders, the individual then enters the treatment program (which may include
alcohol and substance abuse treatment). If ineligible, the individual returns
to the formal court system. Repeat offenders are eligible to participate.
During the treatment period, the individual is brought before the court every
month for a progress report. The report to the court also includes information
from the victim. After the individual completes the SAP, the counsellor submits
a written report on progress to the accused, defence counsel, the Crown and
the court. The sentencing judge reviews the report and imposes a sentence, which
reflects the offender’s progress and addresses future counselling, relapse prevention
and safety issues.
Resource people, such as probation officers, SAP counsellors and Victim Services
staff, regularly attend the DVTO court to provide assistance. Victims receive
support in the form of assistance with safety planning; referrals for counselling
for themselves and their children; updates on the offender’s progress; court
accompaniment; and assistance in preparing victim impact statements.
Officials involved in the DVTO Program believe it is effective because cases
are processed quickly and perpetrators are admitted to programs at an early
stage. The program provides for ongoing monitoring and accountability to the
court and to the victim. Although the process is judge-driven, a steering committee
(with representatives from community groups and justice professionals) provides
ongoing program input. A three-year evaluation process is underway.
Some concern has been expressed regarding the delay in sentencing of up to one
year pending completion of a treatment program, in light of section 720 of the
Criminal Code.[128] This
issue is currently under review by the FPT Working Group on Sentencing.
v) Calgary Domestic Violence Courtroom
In June 2000, the Calgary Domestic Violence Courtroom, now known as HomeFront,
was established as part of a four-year pilot project.[129]
The court sits every morning and functions as a docket court; trials are scheduled
in other courtrooms. The goal of the initiative is to reduce domestic violence,
while linking the victim and offender more quickly and effectively with specialized
services.
A pre-court conference brings together the Crown, the defence, probation officers,
domestic court caseworkers and police to co-ordinate relevant information to
be brought before the court. Front-line police officers and the Domestic Conflict
Unit of the Calgary police conduct risk assessments. Domestic court caseworkers
initiate contact with the victim immediately following the accused’s arrest
and offer a continuum of support services, including information about case
status and notification of changes; court accompaniment; communication of the
victim’s perspective in the pre-court conference; information about risk assessment
and safety planning; and referral to community resources. A specialized Community
Corrections Probation Unit monitors those on probation in approximately 75 percent
to 80 percent of cases, focussing on victim safety and offender accountability.
Emphasis is placed on early access (within 48 hours) to court-ordered treatment
and increased availability of culturally appropriate programs.
Protocols have been developed with 52 agencies, including hospitals, shelters,
Aboriginal organizations, and child welfare agencies (a referral is made in
each case where children are involved).
There have been some deviations from the original plan. It was intended that
two judges be dedicated to the court, for six-month rotations. This was abandoned
early in the project and judges now appear randomly in the courtroom. The workload
for probation staff who monitor offender compliance has been greater than expected
and it has not been possible to assign a dedicated probation officer.
Co-ordinators of the initiative maintain that the court itself constitutes a
small part of the program and that the key element is the strong link between
the legal system and the broad spectrum of social services within the community.
The initiative has engaged the community as a whole and has even received donations
from the corporate sector.
Of the 140 cases resolved in May-June 2001, the accused pleaded guilty in 19 percent,
34 percent were resolved by peace bond, and the accused pleaded not guilty
in 46 percent (these latter cases proceeded to trial). The top five dispositions
in the Calgary court were peace bond (66 percent), supervised probation
(22 percent), withdrawal (15 percent), suspended sentence (12 percent)
and incarceration (11 percent). Among probation and peace bond conditions,
offender treatment was most frequent at 86 percent. No contact with the
victim was a condition in 18 percent of the cases. Domestic court caseworkers
were not able to contact 34 percent of the adult victims, and only 10 percent
were contacted before trial. This fact undoubtedly had an impact on court disposition.
Domestic court caseworkers referred victims to a variety of services, mostly
shelters (HomeFront Output Pilot results and fact sheet).
A fact sheet notes that, in the period from the court’s opening on May 29,
2000, to April 19, 2002, the number of charges laid, probation orders and
mandated treatments increased substantially. Domestic violence cases account
for 40 percent to 50 percent of the probation caseload in Calgary. In this
period, 62 percent of the cases were processed through the court, resulting
in dispositions of peace bonds (39 percent of all cases) and guilty pleas
(23 percent of all cases). A review of 878 probation (closed supervision)
files revealed 171 (19 percent) of individuals on probation had breached
their order.
Peace bonds are used in situations where it is perceived there is a low risk
of someone re-offending and hence a low risk to the safety of the victim; where
the offender is prepared to participate in counselling; and where the victim
wishes to see a resolution that does not result in a criminal record for the
accused and that permits possible reintegration of the family unit. In every
case, the offender is required to accept responsibility for the offence. Most
peace bonds include supervision by probation officers, together with conditions
of treatment. Offenders who are subject to peace bonds are held to the same
standards as those who are subject to probation orders, and breaches are dealt
with by a charge pursuant to section 811 of the Criminal Code. Interim
evaluation data show that individuals who enter into peace bonds display a low
rate of recidivism and that such a disposition can usually be obtained early
in proceedings, facilitating early entry into treatment.
Need for Ongoing Research and Evaluation
Each jurisdiction that has instituted a specialized court has started evaluating
it to determine its impact. Unfortunately, pre-and post implementation data
are largely absent or inadequate in many jurisdictions, making definitive comparisons
difficult.
RESOLVE, a family violence research centre involving the three Prairie provinces,
has received a $600,000 three-year grant from the Community and Universities
Research Alliance to evaluate the justice and community response to family violence
in those provinces. RESOLVE Alberta at the University of Calgary is the lead
institution for this study. The research includes three major components: court
data collection, comparison of provincial civil legislation and evaluation of
community perspectives on the justice response. It involves comparing specialized
court systems (in Winnipeg and Calgary) with non-specialized systems (in Edmonton,
Saskatoon and Regina) to determine differences and similarities in variables
such as conviction rates and increased enforcement of sentences; victim trust
and participation; victim safety; services and referrals provided; and inter-agency
communication and understanding. A Crown manual on case law in domestic violence
will also be developed.
vi) Elements of an Effective Response
Specialized domestic violence courts have been established to improve the response
of the justice system to incidents of spousal abuse or decreasing court processing
time; increasing conviction rates; providing a focal point for programs and
services for victims and offenders; and, in some cases, allowing for the specialization
of police, Crown Prosecutors and the judiciary in domestic violence matters.
Based on the experience to date, it appears that the critical components of
successful models are as follows:
vii) Challenges
Establishing specialized domestic violence courts, or even specialized processes,
in remote areas or in areas with low case volumes presents significant challenges.
Frequently, auxiliary services, such as victim support and abusive partner intervention
programs (which are critical to the success of the specialized courts) are simply
not available in small communities.
Experience has shown the major challenge to be allocating the resources needed
to dedicate the services of criminal justice personnel to spousal abuse cases,
and to provide specialized programs for victims and offenders. In some jurisdictions,
this problem is compounded by low case volume and difficulties in accessing
central or even regional specialized courts with programs for victims and offenders.
There is evidence that dedicated courts do improve justice system performance.
However, formally dedicated or specialized courts appear not to be the only
means of improving the justice system response to domestic violence. The elements
of the courts’ response—what makes this response effective—can be exported and
implemented in other ways, such as through specialized processes similar to
those pursued in Ontario. The critical ingredients remain the same, whether
the court is the focal point of co-ordination or whether there are dedicated
judges, prosecutors and courtrooms. Case volume will likely determine the need
for a dedicated courtroom or dedicated court time.
It appears the prime challenge facing jurisdictions is the need to implement
a co-ordinated and consistent policy, practice and service response among all
criminal justice system players (or specialized court and justice system processes),
to ensure effective handling of domestic violence cases through a dedicated
court or otherwise. The issues are the same as those related to co-ordination
of domestic violence responses generally, as discussed earlier.
viii) Recommendations
Domestic violence courts and specialized criminal justice processing
It is recommended that jurisdictions continue to explore options to improve
the handling of spousal/partner abuse cases through delivery of a co-ordinated
justice system response, including specialized court processes, based on the
critical elements identified above. The adoption of specialized structures and
processes should be guided by research and evaluation being undertaken in Canada
and elsewhere.
3) DOMESTIC VIOLENCE LEGISLATION
Seven jurisdictions have now passed civil (non-criminal) domestic violence legislation—Saskatchewan
(1995), Prince Edward Island (1996), Yukon (November 1999), Manitoba (September
1999), Alberta (June 1999), Ontario (passed in 2000 but not proclaimed) and
Nova Scotia (passed in 2001 but not yet proclaimed). New Brunswick, Quebec and
the Northwest Territories are considering adopting such legislation.
i) Elements of the Legislation
Purpose and objectives
This legislation is intended to complement, not supplant, the Criminal Code
process. Police are still to lay charges where reasonable grounds exist to do
so. Civil domestic violence legislation provides a wider range of remedies than
those currently available in the Criminal Code or in other provincial
statutes.
Scope and definitions
Most provincial domestic violence legislation applies to cohabitants, family
members or individuals who are living together in a family, spousal or intimate
relationship and to persons who are parents of children, regardless of their
marital status or whether they have lived together. Manitoba’s legislation applies
not only to victims of domestic violence, but to all persons subjected to stalking,
regardless of the nature of the relationship between the victim and the stalker.
While Ontario’s legislation also makes specific references to behaviours typically
involved in stalking, its application is only to those behaviours occurring
within a defined domestic context.
Domestic violence is usually defined as including physical abuse, threats and
damage to property (typically worded as “an act or threatened act causing bodily
harm or injury or damage to property”); forcible confinement; or sexual abuse.
Yukon’s Act adds “depriving a person of food, clothing, medical attention, shelter,
transportation or other necessaries of life,” and both Prince Edward Island
and Manitoba include emotional or psychological abuse. (Please consult the specific
pieces of legislation for precise wording; this description is intended to provide
a general overview only.)
Basic features and key provisions
The legislation has similar key provisions but with some differences. All but
Nova Scotia’s enable the granting of two types of orders—a short-term emergency
intervention or protection order and a longer term victim assistance order,
sometimes called a protection or prevention order. As a result of the low utilization
of this latter provision in other jurisdictions, Nova Scotia did not adopt the
longer term order, opting instead to enable extension of an existing order by
30 days. In Saskatchewan, Yukon and Alberta, a warrant of entry provision
is also available.
The short-term orders are available 24 hours a day, either by telephone
at the scene of an abuse incident or by appearance before a specially designated
justice of the peace trained in family violence issues. All include remedies
similar to the following:
Some legislation enumerates these “other provisions” more specifically, such
as:
The offence and penalty sections differ. Some acts include penalties and others
use section 127 of the Criminal Code to govern breaches of orders
made under the domestic violence legislation.
All emergency orders require automatic review by a superior court within three
to seven days, except in Manitoba, where reverse onus is placed on the respondent
to contest an order within 20 days of service of the order. In practical terms,
this requirement significantly reduces the court’s workload. As well, evaluations
in other jurisdictions suggest that the emergency orders are rarely challenged
by the respondent and are most often confirmed by the court on review.
ii) Perceived Benefits
The key benefits of the legislation are identified as follows:
There is also the suggestion, from an evaluation of the impact of the Prince
Edward Island legislation,[130] that such legislation may
reduce recidivism in early stages of abusive relationships. The Prince Edward
Island data indicate that 75 percent of women separate from their abuser
following police intervention and issuance of an order.
The legislation is reported to be relatively easy to administer from the perspective
of police, as a request for an order requires only about 20 minutes of police
time (in Saskatchewan and Alberta). However, streamlining of procedures was
identified as an issue for police in Prince Edward Island.
iii) Elements of an Effective Response
The critical success factors are intensive training before the legislation is
implemented; and public awareness and education sessions to inform victims and
the public of the existence of the legislation and remedies available. Other
factors cited include the use of a collaborative approach involving multiple
departments and stakeholders. An adequate consultation process to solicit the
support of the community, judiciary and others is also important for success.
Training of all sectors regarding the dynamics of family violence and in the
specific roles of each component of the justice system is a critical
success factor in the introduction of any new legislation. It has been the experience
of jurisdictions that training must be ongoing, be updated to address emerging
issues and concerns, and involve multiple community stakeholders. Saskatchewan
cited its selection criteria for justices of the peace (JP) as a critical success
factor in that candidates were chosen based on their family violence knowledge
and expertise. They were not existing JPs trained in family violence, but rather
family violence specialists trained in the legal process and the role of a JP.
As well, they were representative of various linguistic groups and geographic
(rural and isolated versus urban) areas of the province.
An iterative process must be instituted to address emerging concerns (such as
differing interpretation and implementation issues) among players in the justice
and non-justice sectors involved in providing services to family violence victims.
Monitoring and evaluation is also necessary to identify problems early and to
intervene quickly and effectively to ensure the legislation is applied in the
way it was intended.
iv) Issues and Concerns
The following is a list of commonly identified issues and concerns. A description
of additional jurisdiction-specific issues can be found in the interjurisdictional
comparison and literature review conducted by Carolyn Marshall.[131]
Utilization rates
Emergency orders are being used but longer term orders are not. This difference
has been attributed to the fact that the process requires legal representation
and legal aid resources are insufficient. Warrant of entry provisions are seldom
used.
Although short-term emergency orders are being used, usage rates seem low compared
to the number of incidents reported to the police. Manitoba has the highest
usage rates, with about 1,100 orders issued in the first year of experience
with the legislation, compared to 400 per year in neighbouring Saskatchewan,
which has had legislation in effect for six years. The numbers of emergency
orders issued on average per year in the other jurisdictions are 145 (Alberta),
28 (Prince Edward Island) and 30 (Yukon).
In general, utilization rates are related to a number of factors, including
the following:
In addition to these factors, Yukon attributes its low usage rate to poor socio-economic
conditions, substance abuse, ethno-cultural divisions and the lack of program
alternatives in the North. It is widely believed that abused women have to leave
their communities to be safe.
In summary, evaluation results indicate that short-term orders are more readily
used than longer term orders are, but not in numbers even closely approximating
the number of domestic violence cases reported to police. More work is needed
to understand why this might be the case. Jurisdictional studies have offered
partial explanations—more police training is needed to ensure officers are aware
of the legislation and promote its use; justice players need to develop a common
understanding of the situations in which it is appropriate to use this remedy,
particularly in conjunction with the Criminal Code; and more public education
is needed to inform victims of this potential remedy.
Victims are highly supportive of this legislation in jurisdictions where it
exists.[132] Evaluations show that victims appreciate
the immediacy of protection and the practical remedies of exclusive occupation
of the home and temporary care and custody of the children.
Constitutionality
When this legislation was first introduced in provincial jurisdictions, there
was some concern that it would be ruled unconstitutional and ultra vires.
A challenge is currently before the Manitoba courts and the accused has filed
a Notice of Appeal in the Manitoba Court of Appeal. Although the accused lost
his motion and was convicted, an appeal is anticipated. There has been only
one other court challenge to this legislation, in Prince Edward Island. In that
challenge, the inclusion of emotional abuse in the definition of family violence
was contested (but found by the court not to be overbroad), and the ability
of the province to legislate and provisions regarding notice to the respondent
were challenged. The court ruled the legislation was within the competence of
the provincial legislature but found the notice provisions to be insufficient.
These were amended in 1998.
Relationship to Criminal Code
Other concerns related to whether this legislation would be used as a substitute
for criminal charges, although it was introduced to complement the Criminal
Code. There is some evidence to suggest that substitution may be happening
to some degree as police cite victim reluctance to pursue criminal charges as
one reason for using civil legislation.[133]
There is also evidence to suggest that the legislation is being used in cases
where evidence would be insufficient to warrant criminal charges.[134] Generally, however, it appears this legislation
is used as an adjunct to Criminal Code charges. Jurisdictions must continue
to be vigilant in both monitoring the use of this legislation and implementing
measures on an ongoing basis (through training, policy and practice memoranda,
and good leadership) to ensure it does not replace criminal charges.
Application of legislation to reserves or settlement land
Other issues include the applicability of the legislation
to real property on reserve or settlement land, specifically the granting of
exclusive occupation of the home to the victim. In regard to reserves, the use,
occupation and possession of real property are subject to specific provisions
of the Indian Act (for example sections 20, 24, 28, 49 and 50 of
the Indian Act, R.S.1985, c. I-5). While some bands on reserves may have
adopted bylaws or custom laws granting exclusive possession of the home to victims
of family violence, the legality of these laws has been questioned. In cases
where bands have settled land claim agreements, and depending on the negotiated
agreement, it is possible for them to obtain jurisdiction in relation to family
violence. They may either pass their own laws or incorporate provincial laws
by reference.
Scope of inclusion
In some jurisdictions, the legislation is sufficiently broad to include individuals
in addition to spouses/intimate partners, such as children of a spousal abuse
victim, elders or others unable to protect themselves. Most jurisdictions include
protection for same-sex couples. In Saskatchewan, the results of two evaluations
indicated that, while emergency intervention orders were being effectively used
for spousal abuse situations, very few were used for children, elderly parents
or other cohabitants experiencing abuse. In Alberta, training has been conducted
with child welfare workers on the use of the legislation in child abuse situations.
Tracking and enforcement of protection orders and breaches
Breaches of emergency orders are dealt with by jurisdictions either as a breach
of section 127 of the Criminal Code or as a specific offence set out
in the legislation. Tracking of breaches has proved difficult for most jurisdictions
as these orders are not distinguished from other Criminal Code section
127 offences. This fact means that it is currently not possible to determine
the impact that these orders have had on reducing or eliminating incidents or
threats of domestic violence.
In most jurisdictions, police enter civil domestic violence protection or restraining
orders into the Canadian Police Information Centre (CPIC) database under the
“special interest police” category of the “persons” file or in the “probation”
category of the “persons” file. British Columbia has established a Protection
Order Registry, which receives all orders and conditions related to the safety
and security of a person, including peace bonds, civil restraining orders and
judicial interim release (bail) orders. This is a stand-alone registry but CPIC
users have access to it through a CPIC interface.
The enforcement of breaches of civil orders,[135]
both within and across jurisdictions, has been raised as a significant concern
for jurisdictions. The FPT Co-ordinating Committee of Senior Officials—Family
Justice is reviewing this issue. A number of jurisdictions have passed the Uniform
Enforcement of Canadian Judgments Act, which provides for the reciprocal
enforcement of civil protection orders. Others have not yet done so.
v) Challenges
Jurisdictions that have not yet enacted civil domestic violence legislation
must consider whether it is a priority among the range of tools available to
respond to domestic violence, given that most remedies are already available
and that utilization rates may be low. However, evaluations indicate victims
and stakeholders support this legislation, expressing the view that the additional
remedies greatly benefit some victims, and may provide more opportunity for
early intervention.
In some jurisdictions there is evidence that civil legislation is being used
instead of criminal charges, even when reasonable grounds exist for laying a
charge. To ensure civil legislation is not used to supplant the Criminal
Code, jurisdictions must monitor and evaluate its impact.
Concerns have been expressed about the unenforceability of orders issued under
provincial domestic violence legislation, particularly in (but not limited to)
northern and isolated communities. Accordingly, there is a fear that the orders
give victims a false sense of security, Further, access to victim services in
northern and remote communities is a challenge and a potential barrier to the
introduction of legislation.
Apart from the issues and concerns identified above, a key challenge for jurisdictions
is the acquisition of sufficient resources to implement the legislation (resources
for training, consultation and stakeholder relationships, public education,
co-ordination and problem resolution, monitoring and evaluation).
vi) Recommendations
The prime value of civil domestic violence legislation is the immediacy of protection
and practical intervention it offers by way of remedies to victims and their
children. Although many of the remedies are contained in other provincial legislation,
provincial domestic violence laws bring many of the most significant remedies
together in one statute.
Domestic Violence Legislation
It is recommended that jurisdictions consider whether the adoption of civil
domestic violence legislation would provide more immediate and broader remedies
than currently exist, for example, under the Criminal Code. Of particular
importance are provisions granting the victim exclusive occupation of the home,
temporary possession of personal property, and temporary care and custody of
the children, and a specific prohibition against selling, converting or damaging
property. Provisions directing removal of the abuser and seizure of weapons
are also important. In jurisdictions where it has been enacted, civil domestic
violence legislation is not to be used as a replacement for criminal charges
where reasonable grounds exist for such a charge. However, criminal and civil
process may be used concurrently.
The following critical success factors should guide the implementation of the
legislation:
SECTION III: SUPPORT PROGRAMS[136]1) VICTIM SERVICES One of the most important objectives of the pro-charge policies is the protection of victims through provision of a denunciatory response to spousal/partner violence with the ultimate goal of deterring subsequent abusive behaviour. The directive to proceed with charges and prosecution, notwithstanding the victim’s wishes, was seen as beneficial to victims by taking responsibility for such action out of their hands. However, the objectives of domestic violence victims frequently conflict with those of the justice system. Many victims have goals other than legal sanctions—such as staying in their home, preserving their relationship, obtaining counselling for their partners, and protecting themselves and their children. Even with a prosecutorial policy to proceed with charges wherever possible, unwilling victims find ways to circumvent the criminal justice process: by failing to attend court, by showing strong reluctance to testify and by changing their evidence on the witness stand.[137] Governments have responded by providing services to support victims of spousal or partner violence who are involved with the criminal justice system. Victim services, in this context, are defined to mean services provided as a result of the victim’s involvement with the criminal justice system, as distinct from other services, such as shelters, that may be provided to victims. While the objective of all such programs is to provide for the victim’s safety and well-being, some victims services have the implicit (and sometimes the explicit) objective of ensuring that the victims co-operate with justice system processing—so that they do not change their testimony or otherwise withdraw their co-operation from the criminal proceedings.[138] In jurisdictions committed to retaining or implementing aggressive policies of charging and prosecution in domestic violence cases, the availability of information and services to victims of crime can be expected to increase victim satisfaction with the process. The success of the London, Ontario, mandatory charging policy has been attributed, in large measure, to the availability and effectiveness of specialized services in the community.[139] i) Cross-jurisdictional Overview of Victim Services While all jurisdictions offer victim services, the scope of the services and the delivery agents differ significantly. Some are police-based, some are system-based (including correctional), and others are community-based. Programs may be delivered by government, police or community organizations and by paid staff or volunteers. Services include crisis intervention, advocacy and support, court accompaniment, information about case status, assistance with victim impact statements, referral to other services and criminal injuries compensation. The nature of services provided varies at the local level, reflecting the needs and capacity of individual communities. Volunteers and community agencies first offered many of these services and they continue to play a vital role. Primary differences among these services are that some offer no criminal injuries compensation program to victims, and some offer limited or no counselling, support or court accompaniment. Comprehensiveness of service, staff caseload and geographic coverage appear to be common issues. In British Columbia, the province plans to fund 91 police-based victim service agencies serving 113 police jurisdictions by the end of 2002 -03. There will also be 62 community-based programs, including programs for male survivors and Aboriginal victims. Ontario is fast expanding and integrating its support to victims through its newly created Victim Services Division within the Ministry of the Attorney General, which brings together all victim services from three justice ministries. Currently, the Victim Services Division is responsible for the Victim Witness Assistance Program, now in 42 sites and expanding to all 54 court jurisdictions, in addition to police and community-based victims services. As well, funding has been provided for approximately 119 transitional support workers throughout the province who provide support to abused women (not tied to the justice system); for approximately 100 counselling programs for abused women; for approximately 131 support groups within the Early Intervention Program for Child Witnesses of Domestic Violence; and for a province-wide Assaulted Women’s Helpline and enhanced crisis line services for the francophone community. Quebec has Centres of Victims Services in 11 sites around the province, providing support to victims as they interact with the justice system. Crown counsel are members of intersectoral committees around the province. Correctional officials also participate in the intersectoral committees. For the past few years, the Correctional Services of Quebec (CSQ) have been providing services to victims of spousal violence, including certain information regarding the offenders. In addition, the CSQ intends to implement the Act Respecting the Québec Correctional System which contains provisions related specifically to spousal violence. With these provisions, the granting of information to victims will be legally sanctioned and further adapted to victims’ needs. Moreover, the CSQ uses an identifier for spousal violence files, primarily so victims receive appropriate information in a timely manner. Finally, victims of spousal violence will have the opportunity to make presentations regarding certain forms of release of incarcerated offenders. In Manitoba, extensive services are provided through the Women’s Advocacy Program, community-based services funded by government, and RCMP-based victim service units—most funded by the province, some operated by volunteers and all supported in-kind by the RCMP. In New Brunswick, victims services are provided by RCMP volunteer victim assistance co-ordinators, by four municipal police-based programs, by community agencies with direct police liaison, and by the province’s victims services program, which is offered throughout the province. Newfoundland and Labrador offers a system-based program with staff in 10 regional offices and 1 provincial office. Nova Scotia also operates a provincial program through the Department of Justice, augmented by services provided by RCMP community assistance volunteers and programs provided by municipal police services in some locations. In Prince Edward Island, Victim Services at the Office of the Attorney General operates throughout the province and provides assistance at all stages of the criminal justice process. In Saskatchewan, there are 17 police-based co-ordinators (RCMP and municipal police), eight Aboriginal resource officers in five centres, and three centres with victim/witness co-ordinators. More than 350 victim services personnel and volunteers work out of approximately 50 RCMP detachments. In Alberta, victim services are provided through 107 police-based victim service units, as well as through community-based programs that offer specialized services and through Public Assistance Units based in Crown offices. In Yukon, services are provided in six sites through the Family Violence Prevention Unit as well as by RCMP victim assistance workers. Victim witness assistance staff also operate out of the federal Crown office. In the Northwest Territories, victim/witness assistance staff operate out of the federal Crown offices in Yellowknife and Inuvik; the Government of the Northwest Territories also provides funding to community organizations in four communities to provide victim support, information and follow-up. In Nunavut, victim assistance staff operate out of the Crown office. A number of jurisdictions provide emergency telephone lines for women in crisis and a variety of non-justice-based services. In Quebec, for example, community victim support groups operate a 24-hour phone line to support and comfort victims. A cross-jurisdictional overview of victim services is provided in section VI of this Report. ii) Elements of an Effective Response Provision of victim support is a critical ingredient in an effective response to family violence. A number of studies have been conducted on victims’ needs and their satisfaction with the criminal justice system (see above). Victims consistently say they require specific services and information related to the criminal justice system, such as non-evidentiary pre-trial preparation; details on the status of their particular case; notification of the accused’s status at various intervals throughout the case, from charge and arrest to sentence completion; co-ordinated access to services; and support as they participate in the justice system. Key components of an effective victim service are as follows:
iii) Challenges
Domestic violence differs significantly from extra-familial violence in terms
of the intimate (and frequently ongoing) relationship between victim and assailant.
The criminal justice system has a special role to play with victims of these
offences in providing support to enable them to participate in the process.
The challenge is often to reconcile the competing, and sometimes conflicting,
goals of the victim and the criminal justice system.
With limited resources, jurisdictions need also to decide where support to victims
can be provided most strategically. The justice system must recognize that community
agencies have long played a vital role in providing assistance to victims and
their role should be supported. Mechanisms to ensure collaboration between the
community and the justice system are required to meet victims’ needs.
iv) Recommendations
It is recommended that jurisdictions, in collaboration with community agencies,
continue to ensure the provision of support services to victims to assist them
throughout their involvement with the criminal justice system. These services
should include, at a minimum:
2) SHELTERS, OUTREACH, ADVOCACY AND
OTHER SUPPORT SERVICES FOR ABUSED WOMEN
i) Types of Support Services
Shelters and transition houses
For many years, the only services dedicated solely to responding to the abuse
of women were shelters. Places of safety for women (and frequently children)
are provided in all provinces and territories, although the range of services—including
timing of the intervention[140] and levels of funding provided—differ. Facilities
include transition houses and shelters, second-stage housing, safe houses and
family resource centres. All are residential-based programs or have a residential
component (meaning that they can accommodate abused women and their children
overnight or for varying periods of time). Most provide counselling and other
support programs (such as safe and secure emergency housing, crisis intervention,
emotional support, information and referral, food, shelter, advocacy, a crisis
telephone line and children’s programs) within the shelter. Some also offer
outreach services to former residents and non-residents through telephone, by
letter, through walk-in contact or through support groups.
According to the Transition Home Survey 1999-2000,[141]
62 percent of the facilities provided services for women with disabilities
and 63 percent provided culturally sensitive services for Aboriginal women,
while nearly 6 in 10 shelters provided culturally sensitive services to ethno-cultural
and visible minority residents.[142] Services are generally offered
by paid staff and volunteers. See section VI of this Report
for an overview of shelter services provided.
In 1999-2000, 96,359 women and dependent children were admitted to 448 shelters
for abused women across Canada.[143]
The GSS of 1999 determined that 11 percent of women who experienced spousal
violence in the last five years stayed in a shelter.[144] While women under the age of 25 experience
the highest rates of spousal violence,[145] these women represented a
small proportion of abused women residing in shelters (20 percent).[146] As to why proportionately few abused women
seek refuge in shelters, it has been speculated that many women turn to friends
or relatives or have the financial means to use other alternatives.[147]
Still, on a given day (April 17, 2000), 254 women and 222 children were
turned away from shelters across Canada, for the most part because the shelters
were full.[148]
According to the 1993 Violence Against Women Survey, the severity of
the violence helps determine whether women choose to enter a shelter. The survey
revealed that 19 percent of women overall had at some point been injured
severely enough to seek medical attention; for women who stayed in shelters,
the figure was 63 percent.[149]
The research points to the important role of shelters in providing outreach
programs in addition to residential services. Still, the majority of women never
seek shelter services. More varied accessible services are advocated, such as
direct recruitment in civil and criminal courts; enhanced phone contact; brief
sessions providing condensed information; and an intermediate form of counselling
between phone counselling and shelter-based counselling, such as a drop-in centre.[150]
Shelters developed from the growth of the women’s movement in the 1970s. Despite
their prevalence across North America as the primary resource to protect assaulted
women from violent partners, few shelters have been evaluated. Consequently,
little is known about the impact of shelter stays on users of these facilities.
There is even considerable debate regarding the measures of success that should
be used. Much of the research is based on the assumption that the optimal goal
of shelter programs, and one with which women were presumed to concur, was for
independent living apart from the abusive partner.[151] Shelters’ success, as measured against that
outcome, is seen as limited. The need to reassess independent living as the
major criterion for success has generally been acknowledged. Statistics regarding
the number of women who return to their partners after staying in a shelter
vary from between 49 percent and 58 percent (1981 to 1989)[152]
to 17 percent (April 17, 2000).[153]
Although some recent legislative reforms have as a primary objective the restraint
of the perpetrator, to prevent disruption in the lives of abused spouses and
children as much as possible, short-term safe housing and outreach services
for women in crisis situations will undoubtedly continue to form an essential
component of the continuum of services for victims of spousal and partner violence.
Other non-residential support programs for abused women and their families
London, Ontario, was one of the earliest communities to offer support, advocacy,
legal and other information, and referral to services for abused women on a
non-residential basis, recognizing that services need to be provided in multiple
ways.
Women’s centres and family resource centres also provide abused women with support,
information and referral. Some shelters have begun to provide a range of services
under the rubric of one board or through involvement on the boards of other
service providers.
See section VI of this Report for a cross-jurisdictional survey
of these programs.
ii) Elements of an Effective Response
Due to the multiple needs of victims and their families, a range of services
must be available to complement government support services for victims involved
with the criminal justice system. Services required include the following:
Decisions regarding these issues must be made quickly, at least in the interim,
and must recognize as paramount the need to ensure the safety of victims and
their children.
An effective response to victims can be provided in two ways:
Support can be provided via non-residential service, such as family resource
centres, battered women’s advocacy clinics, women’s centres, shelter outreach
programs and many other vehicles, which already operate throughout the country.
Training for professionals and service providers in a variety of disciplines
is necessary to implement an effective response. These professionals include
health service professionals (physicians, emergency room staff, public health
nurses, paramedics, nurses and home care staff), members of the legal community,
mediators, court assessors, conciliators, lawyers, mental health professionals,
social workers, income assistance staff, child protection workers, educators
and school personnel, in addition to criminal justice system personnel. A comprehensive,
co-ordinated continuum of services must be available to provide an effective
response.
iii) Challenges
The key challenge for jurisdictions is to determine how the varied needs of
these families can be met in a supportive, consistent, co-ordinated, timely
and effective fashion. Additional services and ways of reaching the majority
of abused women who do not currently use shelters and outreach services need
to be explored. It is essential that continued efforts be made to remove barriers
preventing women from using needed services. It is also critical to meet the
needs of women from diverse communities and from isolated or rural communities.
Abused women may access service from a variety of entry points in addition to
police and shelters, such as emergency rooms, family physicians, income security
programs and family courts. These services need to be equipped to respond sensitively
and effectively, providing information and referral to specialized counselling
and services that meet these women’s needs.
People providing shelter services to abused women may not see their objectives
as congruent with those of the justice system. In view of the negative reaction
of some victims to their experience with the justice system, advocates working
within shelters may not encourage women to participate in the justice process
as witnesses. In some jurisdictions, shelter directors complain that they have
not been consulted by the criminal justice system. This tension between these
agencies and the criminal justice system is perhaps a manifestation and natural
extension of the tension that exists between victims and the justice system,
borne partly out of historical response and partly out of the sometimes conflicting
objectives of victims and the justice system. Efforts must be made to co-ordinate
responses and to work together to build partnerships at interagency levels in
order to share perspectives and ownership of the problem. Identifying ways in
which communities and systems can strengthen their response to provide an effective,
co-ordinated and comprehensive array of services to victims and their families
is essential.
iv) Recommendations
It is recommended that jurisdictions explore ways to ensure the provision of
a continuum of accessible, comprehensive and co-ordinated community-based and
government services to victims and their families, including both shelter and
outreach services. Training for criminal justice professionals and service providers
in a variety of disciplines serving abused women and their children is necessary
to strengthen working relationships, to understand differing objectives and
to implement an effective response.
3) INTERVENTIONS FOR CHILDREN EXPOSED TO DOMESTIC VIOLENCE
The 1999 GSS revealed that approximately half a million children in Canada had
heard or witnessed a parent being assaulted during the previous five years.[154] Data provided in section I of this Report
indicate that many children repeatedly witness abuse of a parent, usually their
mother, and that many are negatively affected by this exposure to violence.
Research indicates that police, criminal justice and family law systems are
involved in or aware of the exposure of children to violence in the home. Also,
evidence suggests that children are harmed not only by their exposure to family
violence but as direct recipients of threats and abuse themselves. It has been
estimated that the extent of overlap between woman abuse and child physical
or sexual abuse is approximately 30 to 60 percent.[155]
In the research literature from the past
two decades, evidence of the negative impact of domestic violence on behavioural
development is unequivocal.[156]
In recent years, increasing attention has been focused on the impact of high-conflict
divorce on children who have been exposed to adult domestic violence.[157]
While it is clear that this is an under-researched area, the types of interventions
that have been tried with children include individual and group counselling,
centres that provide facilitated (access exchange) or supervised access, and
programs for children of parents who are divorcing or separating, as well as
programs for these parents themselves.
The Department of Justice Canada commissioned an extensive meta-analysis in
1998 of the various intervention models then in existence. A summary report
identified key justice-related policy considerations including the following:
i) Cross-jurisdictional Overview
of Programs for Children Exposed to Family Violence
Although significantly under-funded to date, these programs are receiving increasing
recognition as a key prevention and recidivism reduction measure. Some jurisdictions
have begun to invest heavily in this area, providing counselling, either individually
or in group format or both, to children to help them overcome the trauma of
exposure to violence in the home and to stop the intergenerational transfer
of abusive behaviour. Complementary support programs are also provided for mothers
who have been abused to teach parenting skills and techniques of coping with
their children’s behaviour.
Saskatchewan offers four programs for mothers and children exposed to family
violence. Manitoba offers short- and long-term counselling for children who
witness violence at home. Calgary has a number of services for children and
youth who have either been exposed to domestic violence or who are themselves
exhibiting aggressive behaviours at home or school. These community-based services
are available to families using the services of the Domestic Violence Court.
Ontario offers the Early Intervention Program for Child Witnesses of Domestic
Violence. There are approximately 131 support groups within the program throughout
the province. The program is based on the concurrent group model, where children,
aged 4 to 16, are supported as they begin to recover from the effects of witnessing
woman abuse while mothers are supported as they help their children recover
from the effects of violence. British Columbia also offers individual and group
counselling for children exposed to violence in the home.
Facilitated or third-party access is required for some families to protect abused
mothers from exposure to re-assault. Supervised access is required where there
is a concern about the parenting ability or capacity of an abuser or where there
is risk of harm to the children. Parent education may also help these families
to avoid placing their children in the middle of disputes following separation
or divorce. These relationships are often characterized as particularly high
conflict with potential for violence and merit particular attention and priority
for action.
Jurisdictions noted above have invested in programs to support children exposed
to domestic violence but this remains an under-serviced area in many jurisdictions.
Child Welfare Involvement
Child welfare legislation in some jurisdictions contains specific clauses that
recognize exposure to domestic violence as a potential reason for a child being
deemed in need of protective services. Jurisdictions with such clauses include
Newfoundland and Labrador, Prince Edward Island, Nova Scotia, New Brunswick,
Ontario, Manitoba, Saskatchewan and Alberta. The Northwest Territories has also
introduced similar amendments to its legislation.
Protocols specific to the reporting of children exposed to domestic violence
exist in Prince Edward Island, Nova Scotia, Ontario, Manitoba and Alberta. While
protocols on child protection, transition houses and abusive partner interventions
do exist, they may not be current and practice is inconsistent. There is evidence
of a lack of reciprocal reporting between police and child protection agencies.
More work must be done to ensure a consistent response, including joint training.
ii) Elements of an Effective Response
While additional research is needed, a number of programs for children exposed
to family violence hold promise, such as group and individual counselling for
children and youth to help them recover from trauma and learn new, non-violent
conflict resolution skills. A complementary program helps non-violent parents
understand the impact of the violence on their children, and provides coping
methods and parenting techniques that support what the children are learning,
as well as safety planning information. Such interventions provide a significant
opportunity to reduce domestic violence by preventing the intergenerational
transfer of violent behaviour.
Evidence suggests programs that provide facilitated (access exchange) or supervised
access, programs for children of parents who are divorcing or separating, programs
to help parents address separation and loss issues, and parenting skills programs
for spousal abusers, are important in enhancing protection for victims and children.
While this area requires further research, the following are suggested as key
elements of an effective response to children exposed to domestic violence:
iii) Challenges
The challenge to jurisdictions is to determine the most effective means of promoting
a co-ordinated approach to services for children exposed to violence in the
home, involving legal, mental health, educational, medical and social service
resources. Jurisdictions must also grapple with the following issues.
There is a need to move toward building long-term supports for troubled families
within the community. Family group decision making is a model that holds some
promise.[159] Further research
is required to determine the circumstances in which such an approach can be
adopted, with appropriate safeguards for all participants.
The negative impact of spousal/partner violence on children is an issue with
significant implications for family law reform. The issue is being considered
by the Co-ordinating Committee of Senior Officials—Family Justice.
iv) Recommendations
It is recommended that jurisdictions develop, with community, justice and other
government partners, a co-ordinated response to children exposed to domestic
violence, based on the key elements of an effective response outlined above.
Supported by services, a co-ordinated policy and procedure framework should
be developed that holds the offender accountable, provides support to enable
parents to protect their children, and does not re-victimize abused women and
their children.
4) ABUSIVE PARTNER INTERVENTION PROGRAMS
Intervention programs for men who assault their partners[160]
were initiated during the late 1970s, initially as educational groups promoting
anti-sexist beliefs and subsequently incorporating cognitive and behavioural
therapeutic techniques.[161] Group treatment became a popular sanction of the courts in
the wake of pro-arrest legislation of the 1980s in the United States. Intervention
programs for men may be required as part of a pre-trial diversion program, or
imposed as part of a sentence or as a condition of probation.
Groups for abusive partners often employ a mixture of theoretical approaches,
although most are based on a feminist model developed by the Domestic Abuse
Intervention Project in Duluth, Minnesota,[162]
which asserts that male violence is part of a spectrum of efforts to control
women. Program length may vary from as little as one day to 32 weeks, but most
often, programs last approximately 16 weeks.[163] Some programs are open-ended and unstructured with new members
joining established groups, while others do not permit continuous program entry.
Intervention programs have rarely been subjected to rigorous scientific investigation.
Moreover, research on the impact of abusive partners’ intervention programs
on recidivism has produced conflicting results. There is little evidence that
one form of intervention is more successful than others or that longer programs
are more effective.[164] However, although empirical
evidence is highly limited, there is some basis for hypothesizing that some
batterers may fare better in treatment (or fare better in certain types of treatment)
than others. There is evidence that violence toward intimates is harder to treat
in abusers with longer and more serious histories of violence toward intimates,
longer criminal records of violence toward strangers and traumatic violence
exposure as children.[165]
It is important to recognize that intervention programs may be more effective
for some abusers than others (and, in fact, may be totally ineffective or harmful
for some perpetrators).
A recent Canadian study[166] found that variations in
program content resulted in little difference in recidivism rates. The study
examined four programs in different regions of Canada that operated with different
models (cognitive/behavioural, humanistic/existential, feminist/psycho-educational
and eclectic). The programs selected for study were intended to represent those
typically available in Canada, not to be considered exemplary. Program integrity,
rather than content or philosophy, was considered to have an impact on recidivism
rates, although the effect was only marginally significant. The authors conclude
that the essential elements of effective intervention remain unknown.
Program attrition is a significant factor in considering the efficacy of abusive
partner intervention programs. Typically, more than half of all participants
assigned to treatment do not finish the program.[167] A research project funded
by the Department of the Solicitor General of Canada[168] found that abusers with an
unstable lifestyle (for example, unemployed people, people with low levels of
education, or low income, or people who changed addresses frequently) and who
did not believe the intervention program addressed their particular problems
were most likely to fail to complete the program. The single strongest predictor
of completion was self-identification of the need for treatment. The study questions
the wisdom of the growing trend to make abusive partner intervention programs
part of the conditions of probation for all abusers who assault their partners,
without paying attention to an assessment of the likelihood that individuals
will complete or benefit from a particular program.
In the United States, male batterers are frequently diverted.[169]
Post-arrest, pre-trial diversion programs are available in a number of states,
generally for defendants with no criminal record. Court-ordered counselling
is initiated after criminal charges have been filed but before conviction. On
successful completion of the treatment program, charges are dropped. The advantage
of these diversion-to-treatment programs is that individuals can be referred
and screened into the programs very quickly (often in less than a week). Moreover,
the incentive to comply with program conditions is significant as charges are
dropped if the abuser completes the program. The disadvantage is that abusive
partners may choose to participate in order to avoid criminal sanctions.
i) Cross-Canada Overview of Abusive
Partner Intervention Programs
Abusive partner intervention and treatment programs are offered in most Canadian
jurisdictions.[170] All programs offer group
counselling, sometimes supplemented by individual counselling and a specialized
curriculum generally based on the dynamics of power and control. Many provide
complementary counselling for, or frequent contact with, partners of the abusive
spouse. Some programs are offered by justice ministries; others are provided
by departments of health or social services, or by private agencies funded by
government.
Alberta has a proposal for a treatment framework that will see expansion and
funding based on compliance with standards.
In Quebec, the report of the coroner’s inquest into the Gaumont-Lirette murder-suicide
recommended the establishment of a hot-line for male batterers, which would
be available 24 hours a day and which would provide support and advice
to men in crisis situations who are at risk of perpetrating violence against
their partner. This service has not yet been established. In the Act Respecting
the Québec Correctional System, which the Correctional Services of Quebec
will implement, spousal violence offenders will be able to begin to address
issues related to their offending behaviour within the correctional context,
before receiving therapy. In this respect, Correctional Services of Quebec will
be able to enter into agreements designed to give offenders access to specialized
therapeutic treatment.
Manitoba also funds a men’s centre in Winnipeg as well as couple counselling[171] under very stringent and selective criteria.
Conjoint interventions are controversial and few evaluations exist of their
effectiveness. Central to the debate are concerns about safety and about minimizing
risk to the female partner. Interventions are generally conducted under stringent
guidelines, when the violence has stopped, the perpetrator has accepted responsibility
for the violence, the partners wish to work on improving their relationship
and there is a commitment to non-violence.
Ontario is expanding the number of Partner Assault Response programs as part
of its Domestic Violence Justice Strategy and specialized court approach. Indeed,
this expansion is an integral element in the model. Programs exist in approximately
one third of the court jurisdictions in Ontario now. Once the justice strategy
is complete, all 54 areas will have programs. Offenders pay a portion of the
cost to promote accountability and responsibility, but this is done on an “ability
to pay” basis.
In the post-plea referral program, selected offenders who plead guilty and successfully
complete a treatment program are given a conditional sentence. This program
is unlike those American diversion programs described above, in that prosecution
is not deferred and charges are not dropped. Completion rates were higher in
the Ontario early intervention programs than in the post-sentence court-ordered
programs, although it is not known whether this difference is due to the characteristics
of the offender or to the accountability associated with the final court date.[172]
In Yukon, the Assaultive Husbands Treatment program is offered to selected offenders
who enter a guilty plea. Offenders are brought before the judge monthly so that
progress can be monitored. Sentencing is deferred for up to a year. A women’s
program is offered by the same agency that provides the men’s program. A man
who wishes to have a no-contact order lifted must present a safety plan for
his family to the court.
ii) Elements of an Effective Response
While more research is needed in the face of contradictory results to date,
the key elements of an effective response appear to be as follows:
iii) Challenges
A key issue is whether the justice system should promote the use of abusive
partner intervention programs, in the absence of persuasive evidence of their
effectiveness.
Questions remain about program admission criteria and the implications for denial
of admission; the stage in the justice process at which perpetrators should
be referred; the type of offender supervision that should be provided during
participation in the treatment program, and who should be responsible; the mechanisms
that should be established to ensure victim safety; and access to programs in
rural and remote communities.
The definition of “success” is also in dispute. Is a reduction in the number
or severity of violent incidents sufficient, or must there be absolute cessation?
Over what time period must this reduction or cessation be sustained to be considered
successful? Is replacement of physically abusive acts with psychologically abusive
acts still an indicator of success? Recognizing that in some cases, the offender’s
motive is to avoid charges rather than to change behaviour, should we require
simply program completion or evidence of behaviour change?
Encouraging assaultive partners to adopt non-violent responses to conflict is
obviously a key element of a successful strategy to address domestic violence.
Jurisdictions must continue to evaluate their current programs, building on
the evidence of best practices to deliver programs to reduce recidivism, increase
offender accountability and help victims who intend to keep living with the
perpetrator.
iv) Recommendations
It is recommended that jurisdictions continue to develop programs for abusive
partners and that these programs reflect evidence-based practice. They must
support rigorous research and evaluation to help them determine the elements
of an effective response.
5) RISK ASSESSMENT
i) Research and Best Practices
In addition to improving existing services, and exploring new initiatives and
co-ordinated efforts to increase the safety of women assaulted by their intimate
partners, women’s activists, researchers, and public policymakers have tried
to improve their understanding of their ability to assess risk related to both
re-offending and lethality or dangerousness.
The science of predicting domestic violence is in its infancy. Data on the reliability,
validity and predictive accuracy of risk assessment tools are so scarce[173]
as to be “practically non-existent.”[174] As few empirical studies
have sought to distinguish risk markers, it is not possible to identify with
certainty a particular set of characteristics that may be used to determine
whether individuals are at risk of perpetrating or becoming victims of domestic
violence.[175] Despite every effort based on knowledge to date, there is no
way to guarantee safety for victims of spousal/intimate partner violence.
However, a number of factors have been identified as correlates of risk for
perpetration of domestic violence[176]
and for domestic violence victimization.[177]
While there are similarities or overlap between the risk factors for repeat
violence and those for lethal violence, they are not identical.[178] Practitioners should be aware of this distinction when choosing
assessment tools.[179] Jacquelyn Campbell has identified
nine homicide risk factors that a majority of domestic violence experts have
recognized: access to or ownership of guns, use of weapons in prior abusive
incidents, threats with weapons, serious injury in prior abusive incidents,
threats of suicide, threats to kill, drug or alcohol abuse, forced sex with
the female partner and obsessive behaviour (such as extreme jealousy or dominance).[180] Campbell’s Danger Assessment
Instrument [181] has been widely tested and
forms the basis for many of the informal assessment methods currently used.[182] A risk assessment and management tool and
strategy developed by Randall Kropp and others at the British Columbia Institute
Against Family Violence, the Spousal Assault Risk Assessment Guide (SARA),[183] refers to both lethal and
non-lethal violence. The SARA is a clinical checklist of risk factors
identified in the research literature. It is intended to be an accessible tool
for a full range of professionals, and contains what the authors consider a
basic set of factors that should be considered when assessing risk.[184]
Some of the cautions associated with the use of lethality assessment tools are
summarized as follows:
Similarly, cautions are noted regarding the use of risk assessment tools adapted
for use at different stages of the justice system, to evaluate the likelihood
of repeated violence. For example, assessments are only relevant for a specific
period of time, and decisions based on their results need to be re-evaluated
later in the justice process. Further, service providers should remember that
violence can occur even in the absence of identified risk markers.[186]
Despite these difficulties, and though empirical studies are few, there is early
evidence to suggest that risk assessments used in safety planning for victims
of intimate partner violence may provide additional insights, help victims adopt
new safety measures, or help parties match safety planning to specific dangers.
Use of assessment tools in relation to repeated or escalating violence may encourage
co-ordination among multiple service providers,[187] expose justice officials
to issues they might not otherwise consider and provide a “touchstone” for victims
themselves, a lens through which they can see their situation.[188]
Factors assessing the likelihood that violence will be repeated or escalate
have been incorporated into a variety of risk assessment tools currently in
use in North America among police, victim services, Crown Prosecutors and correctional
services. Instruments are used at all points in the justice system, but they
are most commonly used to guide decisions involving probation, treatment and
incarceration. Although risk assessment is used in some locations to inform
decisions regarding judicial interim release, the use of such tools is compromised
by lack of time and opportunity. Efforts are made to identify high-risk abusers
in order to assess and manage threats to victims and to allocate scarce probation
supervision and treatment resources. As more offenders have been charged and
received probation sentences, this group of offenders has come to comprise the
single largest group on probation.
British Columbia is using the SARA checklist, which has been adapted
for Crown use. Nova Scotia and Prince Edward Island have also initiated training
on the use of this tool.
Forensic Assessment Services does risk assessment for the Calgary Domestic Violence
Court. As well, Alberta uses a “risk factoring tool” when making decisions at
bail. As part of Ontario’s Domestic Violence Justice Strategy, police will be
collecting data using a Domestic Violence Supplementary Report Form (DVSR),
which includes a risk assessment component. A guide to completing the form includes
information on the value of a sworn videotaped statement, and the process for
obtaining one; a rationale for the risk assessment tool and the process for
soliciting information; and information on a safety plan for the victim and
children. Information collected is critical and will be used at various stages
of the justice process by police, Crown Prosecutors, and Victim Witness Assistance
Program staff.
A federally funded contract has been awarded to Randall Kropp to develop a revised
risk assessment tool, based on earlier work on theSARA and to pilot it in three
sites. The tool is intended to help criminal justice professionals assess
the risk that the offender will re-offend after release (for example, on bail
or post-sentence) and determine appropriate responses. It is anticipated thetool
will include a checklist and interview guide for use with victims.
ii) Elements of an Effective Response
While further research is being conducted on the tools, it is too early to speak
to their utility or effectiveness in decision making.
iii) Challenges
These tools hold promise for identifying those most apt to cause serious harm
and thus provide an opportunity to intervene through, for example, arrest, detention
in custody, sentencing conditions, release decision making and development of
safety plans for the victim. However, it is important to apply these tools cautiously.
Strong evidence does not yet exist that these tools clearly predict future behaviour.
It is uncertain whether results are sufficient to distinguish among those abusers
who pose a serious threat of lethal assault, those who are likely to cause harm
but not lethal harm, and those not likely to cause harm.
Jurisdictions must be mindful of the limitations of these tools, particularly
when offering guidelines for intervention based on the application of these
tools. These cautions should be communicated in any training provided on the
use of the tools. Their value may lie mainly in increasing awareness of the
behaviour of abusive partners, possibly resulting in increased vigilance in
monitoring these offenders and the more cautious release decisions.
iv) Recommendations
It is recommended that the use of validated risk assessment tools be recognized
as important to assist decision making at various stages of the justice system.
It is recommended that the use of risk assessment tools be further explored
by jurisdictions, and that necessary caution be exercised when offering guidelines
for intervention based on the results of their use. Any related training should
communicate the limitations associated with risk assessment tools.
6) MONITORING AND ACCOUNTABILITY MECHANISMS
Auditing, monitoring and accountability mechanisms allow jurisdictions to assess
the effectiveness of strategies and to ensure compliance.[189]
To track the progress of cases through the justice system and to assess the
impact of program and process changes on an ongoing basis, a jurisdiction needs
an integrated information system. The capacity of jurisdictions to track cases
from the point of a call to police through sentence completion is severely limited
as, for the most part, justice information systems do not link components (police,
the Crown and correctional services). Jurisdictions have relied on periodic
special studies to assess justice performance.
Virtually all public inquiries, coroner’s inquests and government investigations
into incidents of spousal/partner homicide have decried the lack of comprehensive
information regarding the justice system’s response to incidents of family violence
and have recommended the development of integrated information systems. The
cost of and specialized expertise required for information systems development
no doubt are major factors responsible for the relatively slow development in
this area, as are ongoing operational expenditures to maintain such systems.
The Canadian Centre for Justice Statistics at Statistics Canada is currently
assessing the feasibility of linking police, courts and corrections data in
order to address questions related to sentencing patterns and recidivism among
spousal violence perpetrators. Most court systems, except specialized domestic
violence courts, do not identify the sex of the victims or the relationship
between the victims and the accused. This information is critical for identifying
spousal violence cases since there is no specific Criminal Code offence
of “spousal violence.” Police statistics do identify these characteristics of
the victims and the accused, so linking police and courts data will provide
much needed information concerning the processing and treatment of these cases
at various stages of the criminal justice system. Results of the feasibility
work are expected within two to three years.
Data are available on certain aspects of domestic violence legislation where
it has been enacted; Saskatchewan, Prince Edward Island, Manitoba, Yukon and
Alberta have each produced evaluation reports on their legislation. Nova Scotia
undertook the most comprehensive tracking study to date and built a prototype
information system to collect data on an ongoing basis, which was not implemented
due to fiscal restraint. New Brunswick built a system based on aggregate data
on family violence cases, which it continues to enhance. Manitoba tracked domestic
violence cases in three police sites in the early 1990s and has produced evaluations
of the Winnipeg Family Violence Court and related reports. Ontario recently
published an evaluation of the operation of its domestic violence courts. Saskatchewan
is planning to undertake a tracking study of its domestic violence cases handled
in criminal court. Quebec produces annual reports from policing data. Yukon
has produced a report on spousal assault and mandatory charging. RCMP data capture
spousal assaults, but not the full range of spousal violence offences.[190]
Audit mechanisms are key to determining justice professionals’ level of compliance
with pro-charge, pro-prosecution policies. Although tracking studies conducted
in recent years have demonstrated an increase in police charge rates, there
is still evidence that police in some areas advise victims to apply for a peace
bond, despite the existence of evidence to support a charge. By assessing staff
performance according to the degree to which staff members comply with the policies,
senior managers of criminal justice agencies convey the importance of the policies.
i) Elements of an Effective Response
Data collection should be ongoing and supplemented by periodic research studies
into specific areas of inquiry. Ad hoc, one-time studies do not provide sufficient
information for good policy development and program management. Jurisdictions
must collect data over time so they can analyze trends, detect deviations from
expected performance, and make the necessary changes in policies, practices,
procedures or other areas. Performance measurement is an ongoing function of
good governance. Data should inform public policy and practice.
Within each component of the justice system, managers must ensure compliance
with policies and procedures by making compliance assessment an integral part
of performance management.
Elements of an effective response include the following:
ii) Challenges
Accountability mechanisms, and particularly monitoring and tracking systems,
are compromised by the lack of an integrated justice information network, resource
constraints and the limitations of current technology.
Monitoring, tracking and obtaining statistics on spousal abuse are difficult
because the relationship between victim and offender, rather than a specific
offence, is the factor that distinguishes them from other cases.
iii) Recommendations
It is recommended that jurisdictions develop or enhance accountability mechanisms
for monitoring justice system performance in family violence cases, to support
sound executive decision making and measure the impact of new initiatives. It
is recommended that jurisdictions support the development of information systems,
based on the collection of common key performance indicators, to enable evaluation
of justice system performance. The development of common methodologies for examining
programs is also recommended (for example, when evaluating abusive partner intervention
programs) to facilitate knowledge exchange and advancement.
7) TRAINING
All Canadian jurisdictions have mounted training initiatives with the objective
of improving the response of the justice system to incidents of domestic violence.[191] Specific training programs have accompanied
the introduction of new provincial and territorial policies or protocols; new
domestic violence legislation; or new structures, such as specialized domestic
violence courts.
Most jurisdictions have developed excellent training materials, which emphasize
teamwork involving multi-disciplinary partners; the dynamics of domestic violence;
elements of the legislation, policies and protocols; the roles of the various
criminal justice agencies; and the primacy of victim safety.
In Saskatchewan, two evaluation reports on the implementation of domestic violence
legislation in that province identified the need for more training. Saskatchewan
has addressed the need for training sustainability by creating a position to
develop and deliver training in family violence and the domestic violence legislation.
By using a train-the-trainer approach, the province hopes to create a repository
of expertise at the regional level.
In Prince Edward Island, training is ongoing with the support of existing resources
such as the family violence co-ordinator. A new training package has been developed
for police, in response to concerns identified in the evaluation of the provincial
domestic violence legislation. However, the province indicates it is difficult
to sustain the training initiative with existing resources.
Nova Scotia provided mandatory training for all 3000 justice system employees—police,
court staff, Crown Prosecutors, corrections staff, and victim services staff—as
part of the implementation of the government’s Framework for Action Against
Family Violence in 1996. This training was delivered using a train-the-trainer
approach where selected police, Crown Prosecutors and other criminal justice
professionals were trained to deliver the material to their peers. Community
agencies were also involved in the delivery of training. A review of the Framework
for Action, conducted by Dean Russell of the Dalhousie Law School, expressed
concern that the training effort had not been sustained. As a result, the Justice
Learning Centre was established by the Department of Justice, in partnership
with Nova Scotia Community College, and subsequent training for all justice
professionals is scheduled to begin in early 2003.
New Brunswick undertook a significant training effort with the introduction
of its Woman Abuse Protocols in 1991. The Muriel McQueen Ferguson Centre for
Family Violence Research at the University of New Brunswick, Fredericton, does
offer a certificate program in family violence. In 2001, the government announced
it would revise the protocols by 2003 and subsequently deliver new training.
The Government of New Brunswick is committed to revising the existing protocols
(women abuse and child abuse protocols), as well as announcing a refreshed training
strategy in 2003.
In Quebec, pre-service training in domestic violence is provided to all police
at the provincial police college. A training course is provided to Crown Prosecutors
every 18 months. Quebec will accompany its new sexual assault policy with training.
Correctional Services of Quebec offers specialized training in the dynamics
of spousal violence for corrections officials. A program has also been established
for corrections officials related to dealing with women who are victims of spousal
violence. In addition, local communities also provide training opportunities.
In Ontario, new Crown Prosecutors and those who wish to be designated domestic
violence specialists must take a one-week summer course on domestic violence.
A new ministry-certified Ontario Provincial Police College domestic violence
course for special investigators is now offered, and new probation staff to
be hired as part of the Domestic Violence Justice Strategy will receive special
training.
Manitoba has provided training regarding the implementation of its provincial
domestic violence legislation and for Winnipeg police officers. Similarly, Alberta
conducted a mass training effort to prepare for its Protection Against Family
Violence Act. British Columbia conducted training to coincide with its Violence
Against Women in Relationships Policy. The RCMP in that province provides training
in relationship violence and the criminal harassment policy to every officer.
A training program is available for Crown Prosecutors and support staff. A new
program in risk assessment is being developed for police and victim service
workers.
i) Elements of an Effective Response
A recent review of provincial and territorial domestic violence legislation
and implementation strategies identified some important aspects of successful
training initiatives:[192]
Evaluation data indicates that training, as a component of an integrated strategy,
has had a positive impact on criminal justice system performance.[193]
The following best practices have been identified:[194]
ii) Challenges
Ongoing training of all justice workers is essential, because of the high turnover
of staff and declining policy compliance in the absence of refresher training.
Resource issues and the absence of a focal point of responsibility for ensuring
training delivery affect the ability of jurisdictions to sustain training initiatives.
iii) Recommendations
It is recommended that each jurisdiction develop and implement a plan for the
development and ongoing delivery of cross-sectoral training to new and existing
staff dealing with family violence issues within the criminal justice system.
This training should be based on the critical success factors identified above,
to ensure an effective response to family violence. It is suggested that jurisdictions
share training resources to avoid duplication of effort and to minimize the
burden of developing course material. The work of the National Judicial Institute
should be supported to ensure that the judiciary continues to receive education
regarding the dynamics of spousal/partner violence and the impact of the criminal
justice response.
8) PREVENTION
While many of the aforementioned strategies may influence recidivism by deterring
perpetrators and supporting victims once the abuse has occurred, the preferred
strategy should be one of preventing abuse before it occurs. Prevention can
be conceptualized as a continuum: preventing abuse from happening in the first
place; intervening in a crisis to prevent continuance of abuse; and treatment
or rehabilitation to prevent recurrence of abusive behaviour. Broad-based strategies
that target the general public (such as public education and social marketing
to change individual and collective tolerance for abusive behaviour) and strategies
that focus on high-risk groups are components of a holistic prevention strategy.
i) Elements of an Effective Response
An effective preventive strategy must address all stages of the continuum of
family violence and include the following:
ii) Challenges
Notwithstanding the deterrent and rehabilitative impact of criminal justice
interventions, prevention of spousal or partner violence lies largely outside
the scope of the criminal justice system. Prevention efforts are multi-dimensional
in nature involving many players and systems and influencing behaviour at many
levels over time. Resources must be committed elsewhere to have an impact on
the justice system, and for the most part this impact is not immediate. Because
systems are absorbed in responding to current crises, it is often difficult
to redirect resources into prevention.
iii) Recommendations
It is recommended that resources at the government, corporate and community
levels be committed to broad-based prevention activities, as identified in the
key elements of an effective response identified above.
SECTION IV: SUMMARYSpousal abuse is a complex problem, one that requires interventions from a number of sectors, including the criminal justice sector and the child welfare, education, social and health services sectors. The Ad Hoc Working Group therefore took a broad, multi-sectoral approach to its review of spousal violence policies and legislation. The Ad Hoc Working Group collaborated with other federal, provincial and territorial working groups, as well as with representatives from law enforcement, corrections, social services, statistics and other related fields. As a result, the process leading to the elaboration of this final report was both an enriching and informative experience for the Ad Hoc Working Group members and their colleagues and an excellent example of cross-jurisdictional and multi-sectoral collaboration. In fact, among the many lessons learned through this process, the need for comprehensive and co-ordinated strategies to address the problem of spousal abuse stands out as the key lesson learned. An Effective Strategy to Respond to Domestic Violence The elements of an effective response to domestic violence are common to each initiative undertaken and each focus of intervention:
Within each jurisdiction, a comprehensive, co-ordinated strategy is needed to
address the problem of domestic violence and the factors that contribute to
it. Such co-ordination needs to occur across policy sectors (social, justice,
education and health) and at all levels within each jurisdiction: at the provincial
level (to establish a policy framework); at the local community level (to co-ordinate
services and to identify needs, gaps and solutions); and at the individual level
(to provide effective case management and conferencing mechanisms). The essential
ingredients of an effective strategy addressing domestic violence within each
jurisdiction include resources, a focal point of leadership and co-ordination,
senior-level commitment and support to undertake these initiatives, and an accountability
framework based on commitment to a long-range vision.
The Working Group acknowledges that many gaps remain in our understanding of
the causes of spousal abuse; of the impact of the justice system response to
this form of violence; and of the effectiveness of the various programs and
services for victims and offenders. The Working Group recommends that jurisdictions
support research to address these information gaps in order to provide a foundation
for building a more effective response to spousal abuse.
SECTION V: LIST OF RECOMMENDATIONSCharging Policy 1. The Working Group recommends the retention of the current pro-charging policies for spousal abuse cases. In this regard, the current test should continue to apply, namely, that a charge should be laid where there are reasonable grounds to believe that an offence has been committed and, in jurisdictions with Crown pre-charge approval, when it is in the public interest to lay a charge.[196] 2. These policies are often described as “pro-charging” policies; nonetheless, they are, in fact, the applicable standards for all criminal conduct. Their specific application to spousal abuse cases played a pivotal role in helping to make the critical distinction between the criminal justice system’s treatment of spousal abuse as a “criminal matter” and its historical treatment of spousal abuse as a “private matter.” 3. The Working Group also recommends that the elaboration of pro-charging policies for spousal abuse specifically address, at a minimum, the following key issues. Test not met: Where there are no reasonable grounds to believe that an offence has been committed, but police nonetheless believe that the victim’s safety may be at risk, police should consider the availability of other responses, including civil protection orders under provincial and territorial legislation on domestic violence, where applicable (see section II, subsection 3 of this report), and recognizance orders under section 810 of the Criminal Code. However, these alternative responses should not be used in place of charges where the test has been met. Arrest: The pro-charging policy should not be viewed as modifying the standard criteria used to determine whether the circumstances of the case require the arrest of the offender. All of the circumstances should be evaluated before police decide to arrest, with or without a warrant. Dual charges: Where the facts of a particular case initially suggest dual charges against both parties, police should apply a “primary aggressor” screening model, seek Crown review and approval of proposed dual charges for spousal violence, or do both. Pre-charge diversion to alternative justice processes: The majority of the Working Group recommends against pre-charge diversion of spousal abuse cases to any alternative justice processes. The minority (British Columbia and Prince Edward Island) only allow pre-charge diversion of spousal abuse cases to Alternative Measures programs established pursuant to the Criminal Code on Crown approval and as set out more fullyin section I, subsection 5.[197] Investigation: Attending police must be directed to conduct a complete investigation and to collect all available evidence from all sources and not just from or primarily from the victim. Risk assessment: When conducting any risk assessment, police should apply validated tools to assess the safety and security of the victim throughout the process, including for bail purposes. Police should be supported in this regard through on-going training and education regarding risk assessment in spousal abuse cases. Release of an accused from custody by the officer in charge: In assessing whether there are reasonable grounds to believe that the accused should not be released, the safety and security of the victim should be paramount. The officer in charge should consider whether there is a history of abuse including previous breaches of bail or probation conditions, and criminal or civil court orders. Where the decision is made to release the accused, the officer in charge should require the accused to enter into an undertaking that includes appropriate conditions such as non-communication, non-attendance (for example, at residence, schools and place of employment), firearms and drug and alcohol prohibitions. The victim should be advised of the decision to release an accused from custody and of any applicable conditions. Victim support: Police should be required to advise of, and direct victims to, available victim services and other supporting agencies (such as shelters). Prosecution Policy 4. The Working Group recommends the retention of the current pro-prosecution policies for spousal abuse. In this regard, the current test should continue to apply, namely, that spousal abuse cases should be prosecuted where, based on all of the evidence, there is a reasonable prospect of conviction and it is in the public interest to prosecute.[198] 5. These policies are often described as “pro-prosecution” policies; nonetheless, they are, in fact, the applicable standards for all criminal conduct. Their specific application to spousal abuse cases played a pivotal role in helping to make the critical distinction between the criminal justice system’s treatment of spousal abuse as a “criminal matter” and its historical treatment of spousal abuse as a “private matter”. 6. The Working Group also recommends that the elaboration of pro-prosecution policies for spousal abuse specifically address, at a minimum, the following key issues. Judicial interim release: Crown counsel should require from police or, where bail hearings are conducted by the police, the investigating police officer should provide, sufficient information to assess the risk of harm to the victim’s safety if the accused is released (for example, the results of the application of validated risk assessment tools or evidence outlining any history of violence, threats of serious violence, prior breaches of protective court orders, the use or presence of weapons, employment problems, substance abuse, and suicide threats). The concerns of the victim should be ascertained before the hearing. Where the determination is made to release the accused pending trial, Crown counsel should seek appropriate conditions of release including non-communication, firearms and drug and alcohol prohibitions. The victim should be notified of the outcome of the bail hearing, including conditions of release. In the event of a breach of bail conditions, Crown counsel should consider both prosecuting the breach and seeking an order cancelling the accused’s release. Witness information, notification and support: Spousal abuse victims should be provided with timely information about their case (for example, via police, victim witness assistant or Crown counsel). Victims should also receive continuing support (for example, by victim witness assistants) throughout the process. Reluctant and recanting witnesses: Where a victim is unwilling or unable to testify or to support the prosecution, Crown counsel (via the police or victim service worker) should endeavour to determine the reason for the victim’s reluctance (for example, she may be recanting because no spousal abuse actually occurred or she may be recanting because she has been threatened or pressured to do so by the accused). If the recantation is not credible, Crown counsel should consider whether there is other credible evidence on which to proceed in the absence of direct testimony by the victim. Where there is no longer a reasonable prospect of conviction based on the available evidence, the prosecution should be terminated. Peace bonds: Where the pro-prosecution policy’s test has been met, recognizance orders under section 810 of the Criminal Code should not be used in lieu of prosecution.[199] Post-charge referral to alternative justice processes: The majority of the Working Group recommends against the use of post-charge alternative justice processes in spousal abuse cases, except in accordance with the criteria summarized in section I, subsection 5 of this Report. The minority (British Columbia and Prince Edward Island) only allow post-charge diversion of spousal abuse cases to Alternative Measures programs established pursuant to the Criminal Code on Crown approval and as set out more fully in section I, subsection 5.[200] Sentencing: In making recommendations as to sentence, Crown counsel should do the following:
Alternative Justice Processes
7. The majority of the Working Group recommends against the use of alternative
justice processes in spousal abuse cases except in the following circumstances:
The Working Group also recommends that approval of the use of alternative justice
processes in spousal abuse cases needs to be supported by the following:
Working Group Minority Positions:
Quebec does not have any official Alternative Measures programs and, accordingly,
takes no position on the use of these programs in spousal abuse cases.
Co-ordination and Inter-sectoral Collaboration
8. It is recommended that jurisdictions support and strengthen, with
senior-level commitment, co-ordination of initiatives to respond to family violence
within and outside departments of justice that include multiple government and
community stakeholders. Models of co-ordination may differ among jurisdictions
but should incorporate the key elements of an effective response identified
below. An effective co-ordinated response requires leadership and a focal point
of co-ordination of government family violence initiatives with:
Domestic Violence Courts and Specialized Criminal Justice
Processing
9. It is recommended that jurisdictions continue to explore options to
improve the handling of spousal/partner abuse cases through a co-ordinated justice
system response, including specialized court processes, based on the critical
elements identified below. The adoption of specialized structures and processes
should be guided by research and evaluation being undertaken in Canada and elsewhere.
Based on the experience to date, the critical components of successful models
are as follows:
Domestic Violence Legislation
10. It is recommended that jurisdictions consider whether the adoption
of civil domestic violence legislation would provide more immediate and broader
remedies than presently exist, for example, under the Criminal Code.
Of particular importance are provisions granting to the victim exclusive occupation
of the home, temporary possession of personal property, temporary care and custody
of the children, and a specific prohibition against selling, converting or damaging
property. Provisions directing removal of the abuser and seizure of weapons
are also important. In jurisdictions where it has been enacted, civil domestic
violence legislation is not to be used as a replacement for criminal charges
where reasonable grounds exist for such a charge. However, criminal and civil
process may be used concurrently.
The following critical success factors should guide the implementation of the
legislation:
Victim Services[202]
11. It is recommended that jurisdictions, in collaboration with community
agencies, continue to ensure the provision of support services to victims to
assist them throughout their involvement with the criminal justice system. These
services should include, at minimum:
Key components of an effective service are:
Shelters, Outreach, Advocacy and Other Support Services for Victims
12. It is recommended that jurisdictions explore ways to ensure the provision
of a continuum of accessible, comprehensive and co-ordinated community-based
and government services to victims and their families, including both shelter
and outreach services. Training for criminal justice professionals and service
providers in a variety of disciplines serving abused women and their children
is necessary to strengthen working relationships, to understand differing objectives
and to implement an effective response.
Services required include the following:
Interventions for Children Exposed to Domestic Violence
13. It is recommended that jurisdictions develop, with community, justice
and other government partners, a co-ordinated response to children exposed to
domestic violence, based on the key elements of an effective response outlined
below. Supported by services, a co-ordinated policy and procedure framework
should be developed that holds the offender accountable, provides support to
enable parents to protect their children, and does not re-victimize abused women
and their children.
While this area is in need of further research, the following are suggested
as key elements of an effective response to children exposed to domestic violence:
Abusive Partner Intervention Programs
14. It is recommended that jurisdictions continue to develop programs
for abusive partners that reflect evidence-based practice. They must support
rigorous research and evaluation to help them determine the elements of an effective
response.
While more research is needed in the face of contradictory results to date,
the key elements of an effective response appear to be:
Risk Assessment
15. It is recommended that the use of validated risk assessment tools
be recognized as a way to help people make decisions at various stages of the
justice system. It is recommended that jurisdictions further explore the use
of risk assessment tools, and exercise caution when offering guidelines for
intervention based on the results of their use. Any related training should
communicate the limitations associated with risk assessment tools.
Monitoring and Accountability Mechanisms
16. It is recommended that jurisdictions develop and enhance mechanisms
for monitoring justice system performance in family violence cases, to support
sound executive decision making and measure the impact of new initiatives. It
is recommended that jurisdictions support the development of information systems,
based on the collection of common key performance indicators, to enable evaluation
of justice system performance. The development of common methodologies for examining
programs is also recommended (for example, when evaluating abusive partner treatment
programs) to facilitate knowledge exchange and advancement.
Elements of an effective response include the following:
Training
17. It is recommended that each jurisdiction develop and implement a
plan for the development and ongoing delivery of cross-sectoral training to
new and existing staff dealing with family violence issues within the criminal
justice system. This training should be based on the critical success factors
identified below, to ensure an effective response to family violence. It is
suggested that jurisdictions share training resources to avoid duplication of
effort and to minimize the burden of developing course material. The work of
the National Judicial Institute should be supported to ensure that the judiciary
continues to receive education regarding the dynamics of spousal/partner violence
and the impact of the criminal justice response.
The following best practices have been identified:
Prevention
18. It is recommended that resources at the government, corporate and
community levels be committed to broad-based prevention activities. An effective
preventive strategy must address all stages of the continuum of family violence
and include the following:
Summary
An Effective Strategy to Respond to Domestic Violence
The elements of an effective response to domestic violence are common to each
initiative undertaken and each focus of intervention:
Within each jurisdiction, a comprehensive, co-ordinated strategy is needed to
address the problem of domestic violence and the factors that contribute to
it. Such co-ordination needs to occur across policy sectors (social, justice,
education and health) and all levels within each jurisdiction: at the provincial
level (to establish a policy framework); at the local community level (to co-ordinate
services and to identify needs, gaps and solutions); and at individual level
(to provide effective case management and conferencing mechanisms). The essential
ingredients of an effective strategy addressing domestic violence within each
jurisdiction include resources, a focal point of leadership and co-ordination,
senior-level commitment and support to undertake these initiatives, and an accountability
framework based on commitment to a long-range vision.
SECTION VI: SUPPORTING DOCUMENTS1) MANDATE OF THE AD HOC WORKING GROUP At their September 2000 meeting, federal, provincial and territorial Ministers responsible for justice identified the need to strengthen the criminal justice system’s response to incidents of spousal/partner abuse. It was agreed that an ad hoc, federal, provincial and territorial working group would be formed to review the implementation and status of mandatory charging and prosecutorial policies related to spousal or partner abuse and that it would report back to Ministers on the results in one year. Ministers also requested that officials review legislative proposals made by several jurisdictions, including penalties for breach of restraining orders and reforms to bail provisions and reverse onus in bail hearings. At the October 2000 meeting of the FPT Co-ordinating Committee of Senior Officials (Criminal Justice) (CCSO), it was agreed that Ad Hoc Working Group should review the legislative proposals. The Working Group was struck to review the 1983 spousal abuse charging and prosecutorial policies issued by the Minister of Justice and the Solicitor General through the years at the federal level, as well as similar policies issued by provincial and territorial justice ministries. The Working Group was also asked to report on the following:
To review related legislative proposals to amend the Criminal Code, including
penalties for breach of restraining orders, and reforms to bail provisions and
reverse onus in bail hearings.
To report findings and recommendations to the FPT Ministers responsible for
Justice within one year.
The Ad Hoc Working Group will undertake its tasks in consultation with FPT working
groups with related areas of expertise, including those working on criminal
procedure, victims, diversity, equality and justice. The final report of the
Ad Hoc Working Group will be submitted to FPT Ministers via CCSO and the FPT
Deputy Ministers responsible for Justice.
2) 1983 FEDERAL DIRECTIVES TO POLICE TO AND CROWN PROSECUTORS Government of Canada News ReleaseDecember 21, 1983
JUSTICE MINISTER AND SOLICITOR GENERAL TAKE STEPS AGAINST
SPOUSAL ASSAULT
OTTAWA, December 21, 1983 -- Justice Minister Mark MacGuigan and Solicitor General
Bob Kaplan today announced that policy directives have been issued to instruct
the Royal Canadian Mounted Police and Crown Attorneys investigating and prosecuting
spousal assault cases in the Yukon and Northwest Territories.
Spousal assault is a serious problem in Canada. According to the Canadian Advisory
Council on the Status of Women Report on Wife Battering, one in ten Canadian
women is beaten by her husband or partner, and about 20 per cent of all murder
victims are women killed by their husbands.
While any type of assault is an offence under the Criminal Code, the
Criminal Justice System, including some law enforcement officers and prosecutors,
generally has perceived domestic violence as a family problem rather than a
crime. As a result, many complaints of spousal assault have not been adequately
investigated and prosecuted where reasonable evidence was established.
“These directives are meant to ensure that in the territories, spousal assaults
are treated as any other crime of violence”, said Dr. MacGuigan. “Women must
be given the full protection of the law if we are to stop this violence in Canadian
homes,” he added.
Mr. Kaplan said, “These directives, which apply exclusively to the territories,
reflect the general law enforcement policy of the RCMP governing spousal assault.
This policy has been established in response to public concern over the victimization
of women and involves specialized RCMP training on the laying of charges in
cases of spousal assault. I look forward to the adoption of this approach by
other jurisdictions in Canada”.
The directives require that complaints of spousal assault be investigated immediately
and thoroughly by a police officer. If there are reasonable and probable grounds
to believe an assault has occurred, the investigating officer should lay criminal
charges. Similarly, when charges have been laid, the Crown Attorney will proceed
with the case in all but the most exceptional circumstances. One important effect
of these provisions is that they remove the responsibility and blame for pressing
charges from women, who often fear retaliation.
- 30 -
Ref.: Bill Corbett (version française disponible) (613) 593-4972 Attachment RECOMMENDED POLICE DIRECTIVE - SPOUSAL ASSAULT
It is the purpose of this directive to require the full investigation, for prosecution,
of cases involving spousal assault and measures for the protection of and assistance
to victims. The objective is to take decisions involving prosecution out of
the hands of the victim.
INVESTIGATION AND ARREST
1. All complaints of domestic violence involving spousal assault should be investigated
immediately and thoroughly, with the intention of charges being laid for court
prosecution, irrespective of whether the assaulted spouse wishes to proceed
with charges. An early objective of the investigation should be the protection
of and assistance to victims.
2. Polices officers should be familiar with and acquaint all victims with community
resources such as emergency shelter, legal aid, counselling facilities and welfare
services, and assist them in contacting these resources.
3. Where investigation reveals reasonable and probable grounds to believe a
serious indictable offence has been committed as part of a domestic dispute,
the investigating officer shall arrest the suspect unless, as set out in section
450(2)(d) of the Criminal Code, he has reasonable grounds to believe
that the public interest, having regard to all the circumstances including the
need to establish the identity of the suspect, secure and preserve evidence,
or prevent the continuation or repetition of the offence, may be satisfied without
so arresting the suspect. Those charges most likely to arise in this context
are: assault - section 245, assault with a weapon or causing bodily harm
- section 245.1, aggravated assault - section 245.2, sexual assault as
set out in 246.1, 246.2, 246.3, or weapons offences, section 83 to section 89
of the Code. If an arrest is thought necessary, the suspect shall be held in
custody pending completion of the investigation and determination of the appropriate
terms of release, subject to the requirement under section 454 of the Criminal
Code to take the suspect before a justice within twenty-four hours.
SWEARING OF CHARGES
4. Where investigation supports the conclusion that a spousal assault has been
committed, charges should be laid by the investigating officer, the victim served
with a subpoena for the earliest possible trial date, a complete brief supplied
to the Crown Attorney and a case set to the earliest convenient court docket
for appearance. This directive should be considered mandatory and completed
irrespective of the wishes of the victim.
JUDICIAL INTERIM RELEASE
5. During the investigation, the investigating officer should consider what
terms would be appropriate in an order for judicial interim release, to protect
the victim, for example, an order to abstain from communication of the victim
under section 457(4)(d) of the Code. Where no terms are considered necessary,
and an arrest has been made, the investigating officer should take the accused
before a justice of the peace for release pursuant to sections 454 and
457 of the Code. Where conditions are considered necessary, or release is to
be opposed, a bail report shall be prepared for the Crown Attorney, the accused
brought before a justice under section 454 of the Code within twenty-four hours,
and remanded for a bail hearing under section 457(1) of the Code. A copy of
the interim release terms shall be provided to the victim where there are provisions
contained therein for his or her protection. Where the victim has gone to another
community, the nearest police detachment shall be informed of the release order
and the conditions therein for the protection of the victim.
6. Any breach of the bail terms should be followed by arrest as provided by
section 458(2) of the Code and a further bail review under section 458(3) and
(4) of the Code.
PEACE BONDS
7. The use of the peace bond procedure set out in section 745 and 746 of the
Criminal Code should not be pursued as an alternative or recommended
in cases of spousal assault.
RECOMMENDED DIRECTIVE TO PROSECUTORS SPOUSAL ASSAULT
It is the purpose of this directive to require the prosecution of spousal assault
cases where there is sufficient evidence, and to provide support to the victim
throughout the court process.
REVIEW OF THE CASE IN TERMS OF RELEASE
1. Where a prosecution brief is received involving a case of spousal assault, the prosecutor should review the brief for completeness, see that the charge has been sworn by the investigating officer, and meet with the officer to determine the conditions for bail that will give maximum protection to the victim. He should see that the case is proceeded with in court without undue delay. At the bail hearing, he should press the court for terms that will protect the victim and oppose bail where the circumstances of the case require it. PREPARATION OF WITNESSES 2. When a prosecution brief has been reviewed with the investigating officer, the prosecutor shall meet with the victim to determine her reliability as a witness, explain the prosecution policy, explain what is expected of a witness in court, and encourage the victim to testify on behalf of the Crown. He should also satisfy himself that the victim has been in touch with available community services and is aware of the release conditions if any. DISCONTINUATION OF PROCEEDINGS 3. After reviewing the complete prosecution brief with the investigating officer and interviewing the victim, the prosecutor may form the view that the case is not appropriate for prosecution and stay or withdraw the charges. Such a decision shall not be made without prior discussion with the Regional Director and one of the General Counsel, Criminal Prosecution Section or the Assistant Deputy Attorney General (Criminal Law) in Ottawa. Such a decision should consider any history of prior assault, the safety of the victim and other family members, and any threats of intimidation. The termination of a case short of court prosecution should be considered only in the exceptional case and will be made on behalf of the Crown and not by the victim. SENTENCE 4. Where prosecution results in conviction, the prosecutor shall recommend the sentence which in his view would be appropriate were it not a case of spousal assault. Where an adequate sentence is not obtained, an appeal of sentence will be pursued. The prosecutor in speaking to sentence, shall treat the spousal assault case in the same way as he would treat any other assault on a victim who cannot protect his or herself. ANNUAL REPORT 5. An annual report summarizing the cases of spousal assault prosecuted and the results will be prepared at the direction of the Regional Director and sent to the General Counsel, Criminal Prosecution Section, on the anniversary of the implementation of this policy. 3) OVERVIEW OF SPOUSAL ABUSE PROGRAMS BY JURISDICTION
OVERVIEW OF SPOUSAL ABUSE PROGRAMS BY JURISDICTION
OVERVIEW OF SPOUSAL ABUSE PROGRAMS BY JURISDICTION
OVERVIEW OF SPOUSAL ABUSE PROGRAMS BY JURISDICTION
|
POLICY/ PROGRAMS |
NEW BRUNSWICK |
YUKON |
NWT |
1. Training |
- Extensive training was provided over a two-year
period, with the introduction of protocols. Protocols were launched
at a one-day symposium, with one-day follow-up multi-disciplinary
training on a regional basis and a second day for justice professionals
only.
- Protocols are to be revised by 2003, with training
to follow.
- The Government of New Brunswick is committed to
revising the existing protocols (women abuse and child abuse protocols),
as well as announcing a refreshed training strategy in 2003.
- The province contracted with the Muriel McQueen
Fergusson Centre for Family Violence Research (MMFCFVR) to develop
and deliver a woman abuse curriculum using a train-the-trainer approach.
The centre currently offers a certificate program in family violence.
|
- Chief Judge Territorial Court set up training
for Justices of the Peace on the Family Violence Protection Act
(1999).
- Victims Services provides eight training sessions
a year to police, Crown, community; ongoing. |
- None |
2. Co-ordinating Mechanisms |
- Women’s Issues Branch created in Executive Council
office.
- Deputy Ministers Steering Committee on Violence
Against Women; six inter-departmental project teams tasked with implementing
government’s response to Minister’s Working Group on Violence Against
Women.
- Caring Partnerships initiative funded solely by
Muriel McQueen Fergusson Foundation - to set up regional awareness,
programs, services, and prevention committees in 12 locations.
- Regional Children-at-risk-Teams (CART) have reps
from agencies serving abused women under Department of Family and
Community Services. |
|
- Coalition Against Family Violence - This is a
coalition of government, RCMP and NGOs in Yellowknife. |
3. Support Services3.1 Victim Services |
- Four police-based Victim Services.
- RCMP Volunteers.
- Department of Public Safety Victim Services located
throughout province offer support, trauma, short term counselling,
VIS, VIS Transportation program, counselling referrals, compensation
for victims of crime.
- Community agencies provide services and prevention
programs aimed family violence: Beausejour Crisis Intervention Centre;
Kent Co Family Violence Prevention Program; Restigouche Family Violence
Intervenors
Fredericton Sexual Assault Centre. |
- Family Violence Prevention Unit - including Department
of Justice (federal) Victim Services / Women’s Program (six sites).
- Long-term counselling, outreach, court support,
crisis intervention, VIS, no criminal injuries compensation.
- RCMP volunteer Victim Assistance Workers.
- Counselling provided for victims and offenders of
both sexual and spousal assault.
|
- One Victim Co-ordinator in Department of Justice
GNWT.
- GNWT provides funding to community organizations
in four communities to provide victim support, information and follow-up.
- No criminal injuries compensation.
- Victim / Witness Assistance staff operates out of
Crown office in Yellowknife and Inuvik. |
3.2 Shelters |
- 15 shelters.
- One dedicated Aboriginal shelter.
|
- Four transition houses.
- One women’s centre.
|
- Five shelters, limited number of safe homes and
second-stage housing (women usually have to leave small communities
to obtain service). |
3.3 Programs for Children Exposed to Family Violence |
- Limited programming by some shelters.
|
- Child Abuse Treatment Service (CATS) may support
children exposed to family violence.
|
- Counselling provided through Family Counselling
Centres.
- Group support and individual counselling provided
to children and youth through the Women’s Healing and Recovery Program
in Yellowknife. This program is provided by the YWCA and the Yellowknife
Women’s Centre. |
3.4 Abusive Partner Programs |
- In 1999‑2000, funded 49 partner abuse programs
and 121 anger management programs in province, court-mandated under
correctional supervision (probation or conditional sentences).
- NB-Canada corrections pilot project; incarcerated
provincial offenders provided federal programs.
|
- One court-mandated assaultive husbands treatment
program offered through Family Violence Prevention Unit (individual
and group); outreach to rural areas.
- Sex Offender Risk Management Program.
|
- None, except as provided for individuals in correctional
facilities. |
4. New Initiatives (non justice) |
See 2.0.
- “It’s Up to Me” on healthy relationships course
incorporated into Department of Education curriculum (optional).
- Making Waves dating violence program for teens (weekend
workshops with teens who then lead anti - dating violence activities
in home high school). Both are community-based by CARR and Making
Waves.
- Community Caring Partnerships Committees led by
Muriel McQueen Fergusson Foundation, public education and co-ordination.
|
|
- YWCA and Yellowknife Women’s Centre.
- Women’s and Children’s Healing and Recovery Program.
Includes Assessment and Case Management, Spirit to Change (personal
development, life skills, literacy and one-on-one counselling).
- Trauma (therapy for women who are dealing with past
traumatic issues), Child Recovery (group support and individual counselling
for children and youth). |
5. Reports |
- Minister’s Working Group on Violence Against
Women: Strategic Framework (2001), A Better World for Women: Government
Response to Minister’s Working Group on Violence Against Women (2001).
- “Children Come First” Report followed Jacqueline
Brewer’s death, government will use it as a guide, some recommendations
already implemented.
- Public Safety Department produces annual report
on family violence assaults, homicides, sexual offences.
- Child Death Review Committee Report. |
- Spousal Assault and Mandatory Charging in the
Yukon study.
|
- Coalition on Family Violence - Family Violence
Research Report 2002 (December 2002). |
6. Data Collection |
- Public Safety Department audits municipal police to ensure they have a policy; RCMP has national policy. - Woman abuse statistics system implemented (police
and court aggregate data); victim-offender relationship variable in
new court info system (NBJIS); victim services component of Client
Information System went on-line April 1, 2002. |
|
- Shelter Program data collected.
- Department of Justice, GNWT is working with the
Crown and the RCMP to develop a family violence data collection system.
|
POLICY/ PROGRAMS |
NUNAVUT |
CANADA |
1. Training |
- None. |
- RCMP provides all cadets training on spousal violence including police sensitivity to victims. RCMP provides members with a wide range of training, materials and activities related to spousal assault including the following: “Violence in Relationship Training,” “An Investigative Guide for Sexual Offences,” the video “Violence Against Women, Breaking the Silence,” the CD-ROMs “Family Violence—Not a Private Problem” and “Family Violence in Aboriginal Communities.” - RCMP contributes to multiple initiatives related to
family violence including awareness and prevention programs, risk assessment
tools, data collection, research and evaluation, and training on charging
policies. In March 2002 the RCMP held a National Spousal / Partner Assault
Workshop.
- RCMP has an Investigative Guide for Sexual Offences,
to provide information on appropriate sexual assault investigations.
The RCMP also supports community-based workshops on victim’s issues,
sexual assault and violence in relationships.
- Correctional Services Canada (CSC) and the National
Parole Board (NPB) provide members training on family violence.
- NPB provides training to members regarding the impact
of victimization and the role of victims and NPB hearings.
- Policy Centre for Victims Issues (PCVI) assisting
in development of manuals for Victim / Witness Assistants in the Territories.
- First Nations Family Violence Course for First Nations
police officers.
- A Handbook for Police and Crown Prosecutors on
Criminal Harassment (1999) provides guidelines for law enforcement
and other justice officials regarding spousal violence and stalking.
|
2. Co-ordinating Mechanisms |
- None as of yet, identified as a priority.
|
- Established in 1988, the current Family Violence
Initiative (FVI) is a $7-million per year, multi-disciplinary inter-departmental
co-ordinated federal initiative. It focuses on: promoting public awareness
of the risk factors of family violence and the need for public involvement
in responding to it; strengthening the criminal justice system and other
systems’ response; and supporting data collection, research and evaluation
efforts to identify effective interventions.
- FVI is complemented by other, related federal initiatives—in
particular, the National Crime Prevention Centre (NCPC) and the Policy
Centre for Victims Issues (PCVI).
- NCPC has a National Strategy on Community Safety and
Crime Prevention aimed at reducing crime and victimization by addressing
their root causes through a social development approach. The Strategy
places a particular emphasis on preventing violence against children,
youth, women and Aboriginal people. The Strategy, which began in 1994,
is currently in Phase 2 (1998–2003) and receives $32 million per year.
An increase of 145 million over four years was announced in 2001.
- PCVI has been allocated $5 million per year (2000‑05)
for strengthening the role of victims and facilitating their participation
in the criminal justice system, including victims of spousal violence.
It supports bi-annual meetings of the Federal-Provincial-
Territorial (FPT) Working Group and Provincial Directors of Victim Services and co-ordination of victims’ issues with other related FPT structures. |
3. Support Services3.1 Victim Services |
- Victim / Witness Assistance staff operates out
of Crown office.
|
- RCMP has victim service units that provide information,
assistance and referrals in most jurisdictions. Victim service units
provide some or all of the following: emotional support, assistance
with victim impact statements and other court preparation or accompaniment.
- RCMP’s National Policy on Victim Services, which includes
spousal violence victims, is being revised and expanded.
- CSC and NPB have designated Victim Liaison Co-ordinators
in all regions to co-ordinate information services to victims of federally
incarcerated inmates.
- The Victims’ Fund, administered by the PCVI provides
grants and contributions for innovative projects including new approaches
to service delivery, increasing access to services and providing information
about existing services and for victims of crime.
|
3.2 Shelters |
- Six women’s shelters.
- Social services offer some support.
- Some independent societies centred on family violence
issues.
- Most women have to leave the community to receive
service.
|
- The Shelter Enhancement Initiative under the Canada
Mortgage and Housing Corporation (CMHC) provides grants to repair and
improve existing shelters for women and children who are victims of
family violence. This program was expanded to include shelters and second-stage
housing for youth who are victims of family violence. While funding
is mainly directed to existing facilities, some funding is available
for the creation of new spaces, or acquisition of existing space for
use as emergency or second-stage housing. (1996‑2002).
|
3.3 Programs for Children Exposed to Family Violence |
|
- The Department of Justice (DoJ) funded a needs
assessment of intervention models for children who witness violence
in the home: “Intervention Models for Children who Witness Violence:
A Needs Assessment” (1998).
- DoJ also funded the London Family Court Clinic to
create a Handbook for Police Trainers to Increase Understanding and
improve Community Responses to Children Exposed to Violence.
- PCVI funded the development of a Directory of Court
Based Services for children and youth who are victims or witnesses in
criminal proceedings.
|
3.4 Abusive Partner Programs |
- Program review underway to determine if there is
a cultural basis for many corrections based programs including assaultive
men’s programming.
|
- CSC has had family violence programs for federal
male offenders since 1990 utilizing risk assessment, case supervision
and programs to address violence against women.
- The national Moderate Intensity Family Violence Prevention
Program is a cognitive-behavioural program for moderate risk federal
offenders consisting of about 24 group sessions.
- The national High Intensity Family Violence Prevention
Program consists of about 75 group sessions and is for high-risk offenders.
Both National programs include maintenance and treatment components.
|
4. New Initiatives (non justice) |
- Establishment of informal menrsquo;s and women’s groups
in some communities.
|
- A new Victims of Crime Policy will soon be released
in the Federal Prosecutions Deskbook.
- Federal Prosecution Service is currently reviewing
is prosecution policy on spousal violence.
- The Department of Justice Canada hosted an FPT Forum
on Spousal Abuse in March 1998 to discuss and exchange best practices
by police, Crown Prosecutors, corrections officials, victim services
and policy experts relating to spousal abuse cases. A second FPT Forum
was held in March 2001.
|
5. Reports |
|
- The National Clearinghouse on Family Violence (NCFV),
a federal resource centre operated through the FVI, contains a large
number of reports related to spousal abuse. Recent additions to the
NCFV include “Canada’s Treatment Programs for Men who Abuse their Partners
2002,” “Transition Houses and Shelters For Abused Women In Canada” (2002),
and “A National Directory of Services and Programs for Men Who are or
Have Been Victims of Violence” (2002),
- DoJ also commissioned an array of reports related
to spousal violence. Recent related reports include “Victim’s Experiences
with, Expectations and Perceptions of Restorative Justice” (2000), “Charging
and Prosecution Policies in Cases of Spousal Assault: A Synthesis of
Research, Academic, and Judicial Responses” (2001) and “The Ontario
Rural Women Abuse Study (ORWAS)—Final Report” (2000).
- Other federal publications and reports include the
following:
|
6. Data Collection |
|
- Under the FVI, Statistics Canada (SC) has released
five annual reports entitled Family Violence in Canada: A Statistical
Profile. These reports covering the years 1998 to 2002 are part
of an ongoing initiative to inform the public about family violence
issues and provide current data on the nature and extent of family violence
incidents in Canada and trends over time.
- The 1993 Violence Against Women Survey (VAWS) was
a specialized victimization survey measuring self-reported experiences
of violence against Canadian women, including experiences of spousal
violence. The VAWS is now being used as a model for an international
violence against women survey.
- The 1999 General Social Survey (GSS) on Victimization
included a module on spousal violence which was the first large-scale
traditional victimization survey to measure both women’s and men’s experiences
of spousal violence. The spousal violence module will be repeated in
the next GSS on Victimization.
- The Uniform Crime Reporting (UCR2) Survey collects
police-reported incident-based crime statistics from the policing community,
including data on the relationship between the accused and the victim.
In 2000, 166 police agencies in nine provinces, representing 53% of
the national volume of reported crime, were participating in the UCR2.
- The Homicide Survey provides police-reported data
on the characteristic of all homicide incidents, victims and accused
persons, including spousal homicides.
- The Transition Home Survey was developed under the
FVI in consultation with provincial and territorial governments and
transition home associations. The survey collects information on residential
services for abused women and their children. It has been repeated five
times since 1992.
- SC also produces “Juristat” publications on a variety
of issues, such as Children Witnessing Family Violence (2001),
Spousal Violence after Marital Separation (2001) and National
Trends in Intimate Partner Homicides, 1974–2001 (2002).
- The FVI, in conjunction with other sponsors, commissioned
a report released in May 2002 entitled Public Attitudes Towards Family
Violence: A Syndicated Study, based on original data from a telephone
survey of more than 2,000 Canadians.
|
[1] 1996 Report of the Special Rapporteur on Violence Against Women, submitted to the United Nations’ Commission on Human Rights (E/CN.4/1996/53), para. 22. See also Statistics Canada (Canadian Centre for Justice Statistics), Family Violence in Canada: A Statistical Profile 1999, at 17-19 which provides a comparative summary of surveys on spousal violence against women in Canada, the United States, Australia, England and Wales, Nicaragua, Mexico, Chile, Columbia, Korea, Cambodia, Malaysia, and Papua New Guinea.
[2] Statistics Canada (Canadian Centre for Justice Statistics), Family Violence in Canada: A Statistical Profile 2000 at 16. See also MacLeod, Linda, Battered But Not Beaten…Preventing Wife Battering in Canada (Canadian Advisory Council on the Status of Women, June 1987) at 21; and MacLeod, Linda, Wife Battering in Canada: The Vicious Circle (Canadian Advisory Council on the Status of Women, January 1980) at 14-16.
[3] 1996 Report of the Special Rapporteur on Violence Against Women, supra note 1, paras. 26, 29-31.
[4] Wife Battering in Canada: The Vicious Circle, supra note 2 at 21.
[5] Battered But Not Beaten…Preventing Wife Battering in Canada, supra note 2 at 6.
[165] Hamberger, K.L., & Hastings, J.E., (1993)
Court-mandated treatment of men who assault their partner in N.Z. Hilton,
Legal Responses to Wife Assault. Newbury Park, CA: Sage; Fagan, J.,
Friedman, E., Wexler, S., & Lewis V. (1984) Final Report: National
Family Violence Evaluation, Grant 80-JN-AX-0004, Office of Juvenile
Justice and Delinquency Prevention. Washington, DC, Department of Justice.
 |
 |
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| Last Updated: 2006-07-06 |  |
Important Notices | ||
