Charging Policy
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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]
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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.”
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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).
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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]
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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”.
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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.
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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.
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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.
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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.
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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]
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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]
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Sentencing: In making recommendations as to sentence, Crown counsel should do the following:
- consider section 718.2 of the Criminal Code,which makes the abuse of one’s spouse or child an aggravating factor for sentencing purposes;
- ensure that the victim has had an opportunity to prepare and present a victim impact statement (section 722.2 of the Criminal Code); and
- seek appropriate conditions from the court as part of the sentence, such as conditions addressing non-communication and non-attendance, firearms prohibitions, and drug/alcohol prohibitions and, if appropriate, a condition directing assessment for counselling and/or treatment in an approved abusive partner intervention program.
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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 referral to the alternative justice process is made post-charge on Crown approval;
- trained and qualified personnel, using validated risk assessment tools, determine that the case is not high-risk (in other words, if after a consideration of a variety of factors including 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 offender is assessed to be at low risk of re-offending and therefore of low risk of harm to the victim’s safety, as well as that of her children and other dependents, both throughout and after the process);
- the alternative justice process offers the same or a greater measure of protection of the victim’s safety as does the traditional criminal justice process;
- the victim is fully informed of the proposed alternative justice process and her wishes are taken into consideration. In addition, victim consent is required and victim support must be provided where the victim will be asked to participate in the alternative justice process;
- the offender fully accepts responsibility for his action;
- the alternative justice process is part of a program approved by the Attorney General[201] for the purpose of providing alternative justice responses to spousal abuse and is overseen by the Attorney General or the court;
- the alternative justice process is transparent (that is, it maintains formal and public records of the actions taken by those engaged in the process) and it is undertaken in a timely and reasonable manner;
- the alternative justice process has the capacity to deal with spousal abuse cases and is delivered and supervised by persons possessing the requisite skill, training and capacity, including the ability to recognize and address any power imbalances, as well as cultural differences; and
- the possibility of criminal conviction and sentence remains if the process fails.
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:
- the development and delivery of ongoing training and education for those involved in conducting risk assessment and in delivering and supervising the alternative justice processes and programs, including criminal justice personnel;
- the development and application of validated risk assessment tools for spousal abuse cases; and
- ongoing assessment and evaluation of alternative justice responses, including those used in spousal abuse cases, against new evidence-based research on the effectiveness of these processes, their ability to ensure the safety of the victim and her children, and their ability to reduce the likelihood of re-offending.
Working Group Minority Positions:
- British Columbia and Prince Edward Island only allow the diversion of spousal abuse cases to Alternative Measures programs established pursuant to the Criminal Code, at either the pre- or post-charge stage, on Crown approval.
Quebec does not have any official Alternative Measures programs and, accordingly, takes no position on the use of these programs in spousal abuse cases.
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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:
- authority to shape policy development to achieve a co-ordinated and consistent policy framework among a variety of departments;
- representation by all affected departments at senior levels by people with the ability to influence departmental policy and who have access to the Deputy Minister;
- resources to implement a co-ordinated policy framework;
- an accountability framework with mechanisms to track and report on progress;
- some form of representation and involvement or partnership with community stakeholders with roles of parties clearly defined;
- processes to enhance relationship-building at all levels among all players, and to promote a sense of partnership and a shared vision based on a common understanding of the problem;
- encouragement of local inter-sectoral committees;
- support at a local level for government staff in the field, who implement provincial and territorial policy and who participate meaningfully in interagency forums to create positive working relationships and solutions to problems identified; and
- some joint case management function across agencies to develop co-ordinated case plans for individual families where abuse is a concern (that is, protocols governing exchange of information and service provision; and roles and ways of working together).
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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:
- methods to expedite cases;
- sensitive, informed and appropriate service provided by trained justice professionals; co-ordination of justice system response (in policy and practice);
- co-ordination with a range of other service providers;
- early access to treatment by offenders (to capitalize on offender motivation to change and allow for a more immediate response);
- monitoring of offender compliance with meaningful sanctions to hold offenders accountable;
- access to support, information and referral by victims; and
- monitoring and evaluation of systems to assess effectiveness and to identify areas requiring change and improvement.
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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:
- training should be conducted well in advance of the proclamation of this legislation and should include the information about its relationship to the Criminal Code;
- attention should be paid to the importance of garnering community and stakeholder support;
- mechanisms and co-ordinating committees should be implemented to ensure that problems, such as training or interpretation issues are identified and addressed early;
- the legislation should be closely monitored and evaluated, a task that should include developing methods for tracking breaches of the legislation;
- public education should accompany the legislation to ensure that victims and the community are aware of it;
- issues pertaining to the application of the legislation on reserve or settlement land should be addressed in consultation with Aboriginal communities to enlist their support to ensure the protection of victims and their children and to ensure the same degree of protection is available to individuals on- and off-reserve; and
- provision of adequate legal aid resources will be required to assist women with the longer term victim assistance orders, to make them effective remedies.
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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:
- information about abuse, the criminal justice system, the role of the victim-witness, and case status;
- referral and access to a range of supporting agencies and services to meet the multiplicity of victim needs;
- victim notification of, and participation in, decisions regarding the release of accused individuals and offenders, and notification of conditions associated with the release;
- emotional support and crisis intervention;
- assistance with victim impact statements; and
- risk assessment and safety planning.
Key components of an effective service are:
- intervention as soon as possible following the incident;
- access and referral to a continuum of services;
- services that recognize the unique needs of spousal/partner abuse victims;
- collaboration and co-ordination among agencies providing services;
- clarity of roles (between criminal justice-based victim services and community support agencies); and
- availability of information and effective communication mechanisms among players within, and external to, the justice system.
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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:
- emergency access to a safe place (including emergency transportation and overnight accommodation, particularly for those in rural and isolated areas);
- counselling and emotional support (immediately following a crisis and through follow-up and outreach on a residential or non-residential basis);
- information and referral;
- access to affordable and safe housing, and to legal and medical services;
- employment and income support;
- mental health and addiction services where required;
- child care, child support and counselling for children to overcome trauma;
- safety planning; and
- assistance with the family law system (spousal maintenance, custody and access, child support and accommodation).
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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:
- co-ordination based on the principles of offender accountability, provision of protection and support to victims to enable them to protect and support their children (where they are able) and provision of support services to children;
- improved links, including reporting and referral mechanisms and forms, between police and child protection agencies concerning children exposed to domestic violence;
- protocols for police, child welfare bodies, transition houses and abusive partner intervention programs and training to ensure a consistent response among all parties, which empowers and protects abused women and their children and places accountability for the abusive behaviour on the perpetrator;
- an abusive partner intervention program (with an outreach component for the non-abusive partner), which should contain a component that deals with the impact of the spousal/partner violence on children;
- links with domestic violence legislation (as another tool to protect and support victims and their children in their homes);
- access to programs for children and youth exposed to domestic violence to deal with the issues of recovery from trauma and to address those exhibiting aggressive behaviour themselves; and
- an interdisciplinary advisory committee of multiple stakeholders to address policy issues (including respective roles, information-sharing and other elements of a collective response).
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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:
- the inclusion of partner outreach as a component, regardless of the perpetrator’s participation in the abusive partner intervention program;
- the inclusion of a component that deals with the impact of the abusive partner’s violence on his children;
- links between the abusive partner intervention program and services offered to the victims and their children, to enable victims to make informed choices about their safety;
- assessment of the perpetrator’s potential to succeed in the program (the abuser should be screened for program suitability, and the relevance of the program to the abuser’s characteristics should be considered);
- program admission as soon as possible following apprehension for a violent incident;
- close ties to probation and to the court to ensure vigilant offender monitoring, immediate action on breaches, and the provision of accurate information on offender participation in the program (this relates to offender accountability);
- accountability and monitoring mechanisms to address the impact of programs on offenders, and the problem of high attrition (with meaningful sanctions for non-compliance); and
- a consistent and accepted definition of success.
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.
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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:
- the use in all data collection systems of a family violence identifier to distinguish cases of spousal/partner abuse;
- identification and collection of justice system key performance indicators (such as charge and arrest rates, “drop” rates, conviction rates, dispositions, duration of offender treatment and supervision, offender compliance with conditions, charges for non-compliance and rates of re-offending) to enable comparisons both within and between jurisdictions;
- capacity to produce management reports on justice system performance (by-products of operational systems) for executive decision-making purposes;
- information system integration (from police to courts to corrections) so that individual cases can be tracked;
- use of research to inform policies and practices; and
- performance management to ensure that front-line workers comply with policy and procedures.
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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:
- integration of domestic violence training into pre-service training and additional annual training sessions to update information;
- assignment of training co-ordination to a specific individual or group;
- content that addresses information about the dynamics of family violence, the legislative remedies and options available—both criminal and civil—and the interplay between them, and the unique roles of particular parties (case studies are a useful method to “test” the learner’s ability to apply the policies and procedures, as well as to create a common understanding of “real life situations” and the approaches to be used);
- specialized training for police and Crown Prosecutors on evidence collection and prosecution of domestic violence cases;
- specialized training regarding the dynamics of spousal violence for correctional services officials;
- a train-the-trainer approach, which facilitates training of large numbers in a cost-effective manner;
- training that underscores the partnership between people with expertise in family violence and people with knowledge of the particular sector or profession to be trained, ensuring a sound foundation for the development of the training content and the delivery strategy; and
- provision of training at the local level to build on resources available in the community, since successful training initiatives involve criminal justice professionals together with community representatives, in order to emphasize the community-justice partnership (training is not only a means to impart information but also a process of building community capacity and of enhancing critical relationships among players—an approach that contributes to a common understanding of the problem and of the appropriate means of intervention, as well as to a shared sense of responsibility).
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:
- shared goals and objectives (that is, ensuring victim safety and holding offenders accountable) among all participants from a variety of disciplines;
- a sound procedural framework with clear protocols for intervention and information-sharing for each component, sector and discipline;
- commitment to co-ordination, collaboration and co-operation among all partners;
- training that emphasizes individual roles and responsibilities and links with other components;
- consistent policies that underscore commitment to goals at all levels of the organization;
- appropriate resources to provide services; and
- accountability mechanisms (for offenders, for justice system personnel, and for professionals of other systems and disciplines).
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.
