Best Practices where there is Family Violence (Criminal Law Perspective)

1. Executive Summary

Purpose of the Project

This report is intended to focus on best practices related to cases making their way through the criminal justice system, where there are multiple proceedings – including family law and/or child protection proceedings. The goal is to identify practices that promote the safety of all family members while ensuring a fair process for the accused person.

The Research Approach

The best practices highlighted in the report were identified through a literature review, personal experience and interviews with practitioners, judges and child protection authorities. The challenges presented by the intersection of criminal, family and child protection proceedings have been examined and discussed by both academics and practitioners. They have also been highlighted in the case law. In this report, we attempt to review and build on the current research and writing in respect of how the criminal and family justice branches respond to issues of family violence.

Highlights

Practices that best promote the safety of the family while ensuring a fair process for an accused person depend on effective information sharing between criminal and family courts and the availability of appropriate legal advice and/or information for complainants, accused persons, family law litigants and child protection authorities.

  • Information about family law and child protection proceedings is viewed as vital to making an appropriate determination about interim release from custody (bail) pending trial but, within the current system, is very difficult to obtain at the early stages of a criminal prosecution. A reliable system for obtaining family court and child protection orders, which does not rely solely on an accused or complainant, best facilitates the crafting of appropriate and fair bail conditions that promote the safety of the family without unduly influencing family law proceedings or restricting a parent's relationship with his or her child.
  • Complainants are best served by the criminal justice system where they are informed about the consequences of making a complaint to police, have input on bail conditions and bail variations and understand their legal rights in respect of their private health, counselling and other records. Even where legal advice and information is provided, the dynamics of family violence often result in prosecution witnesses who may be reluctant to testify. Crown policies and guidelines that recognize and respond to the unique challenges that arise in cases of domestic violence best ensure effective prosecutions.
  • An individual accused of a criminal offence who is also a party in family law or child protection proceedings needs legal advice with respect to what (and how) evidence provided in one proceeding may be admitted in another proceeding. Absent that information, parallel child protection and family law matters may languish as the accused attempts to avoid incriminating him or herself. Delay – in the criminal and civil proceedings – is best avoided where all parties understand the negative consequences it may have on the outcome of the related proceedings. Similarly, proper coordination between different proceedings will ensure consistent results and court orders which afford maximum protection for the family and ensures fairness to an accused.
Date modified: