Final Report of the Ad Hoc Federal-Provincial-Territorial Working Group Reviewing Spousal Abuse Policies and Legislation
SECTION II: STRUCTURES AND MODELS
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. 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:
- creating a common philosophical approach that centralizes victim safety;
- establishing consistent policies and protocols for intervening agencies;
- enhancing networking among service providers;
- building monitoring and tracking systems that strengthen system accountability;
- speaking out for battered women within the criminal justice system and within the broader community to ensure a supporting infrastructure;
- providing sanctions and rehabilitation opportunities for abusers;
- undoing the harm violence to women does to children; and
- evaluating the co-ordinated community response for victim safety and offender accountability.
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.
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. 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. 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. 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:
Coordination needs to happen at all levels to be effective. It also takes staff to do the work and a commitment of resources to carry out activities. These (coordinating) bodies need a mandate to coordinate, [one] that is supported by real commitment at the top and that is enforceable. Partnership is a very time-consuming process, but no more so than the resources spent on uncoordinated policies, programs and service delivery systems. Coordination is difficult in part because it operates, by definition, across professional disciplines and departmental boundaries, and outside line authority. Typically the coordination function comes with responsibility but is not supported by the authority to make it happen. Accountability mechanisms tend to be weak if not supported by the senior management of multiple departments/stakeholders. When coordination works, it is in spite of this and is usually the product of partnership and trust-building effort.
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:
- 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 from 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 of, or partnership with, community stakeholders with parties’ roles 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 intersectoral committees;
- support of government staff working at the local level to implement provincial or territorial policy and to 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 the exchange of information and service provision; and roles and ways of working together).
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).
There is increasing recognition that a co-ordinated response is required—one that integrates criminal justice, social service, mental health and community responses. 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.
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.
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.
ii. Winnipeg Family Violence Court
In 1990, Manitoba established the first specialized family violence court in Winnipeg. The five components of the court are:
- a “zero-tolerance” pro-arrest policy;
- a women’s advocacy and child victim/witness program for victims of family violence;
- a specialized prosecutorial unit of 11 Crown Prosecutors;
- specially designed courtrooms and dockets for intake, screening court and trials; and
- a special probation unit to deliver court/mandated treatment programs.
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. 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.” 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.
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:
- an early intervention stream (which emphasizes early access to treatment) for offenders who have no prior convictions for domestic violence, who did not use a weapon in the commission of the offence; and who caused no significant harmtothe victim; and
- a co-ordinated prosecution stream, which emphasizes the gathering of solid evidence to support a vigorous prosecution.
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.
Moyer and Associates evaluated the initial 16 to 18 months of the Domestic Violence Courts (DVC) Program. DVC cases in six DVC sites were compared to matched sample cases handled in the same six sites in the pre-project period. 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:
- an active advisory committee to support the work of the specialized DVC process (a Domestic Violence Court Advisory Committee, or DVCAC);
- interpreters (to help non-English and non-French speakers communicate with police, Crown Prosecutors and victim support staff);
- enhanced investigative procedures for police (including use of a risk indicator tool);
- designated VWAP staff specially trained to give support and information to victims;
- designated Crown Prosecutors specially trained in prosecuting domestic violence cases, to produce consistency and continuity;
- specialized counselling programs for abusive partners; and
- specialized processing to expedite cases and ensure co-ordination of services.
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:
- family violence is a learned behaviour that can be changed;
- offenders need to take responsibility for their actions and to be held accountable as they are being supported with counselling;
- early intervention by a multi-disciplinary team is essential;
- initial and ongoing support must be offered to victims and their families; and
- community-based programs, counselling and supervision are more effective than incarceration in treating this type of behaviour.
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. 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. 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:
- methods to expedite cases;
- sensitive, informed, 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 or improvement.
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.
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:
- granting of exclusive occupation of the home to the victim;
- removing the respondent from the home;
- issuing a no contact/no communication order;
- ordering that the respondent cannot attend a specific place;
- sending a police officer to accompany the party removing personal belongings; and
- making any other provisions necessary to protect the victim.
Some legislation enumerates these “other provisions” more specifically, such as:
- ordering the respondent not to take, sell or damage property;
- ordering the respondent not to commit any further violent acts;
- granting possession of certain personal property (such as a motor vehicle, medical or credit cards, house keys);
- granting the victim temporary care and custody of the children;
- prohibiting the publication of the victim’s name and address;
- seizing weapons and documents authorizing ownership, possession or control of a weapon;
- restraining the respondent from conduct that is threatening, annoying or harassing to the applicant; and
- restraining the respondent from following the applicant from place to place or from being within a specific distance.
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:
- allowing victims and their children to remain in their home, attend work and go to school in their home communities, causing less disruption to the family and more appropriately placing the burden on the abuser to find alternate accommodation;
- including practical provisions that benefit the victim and children on an immediate basis, particularly exclusive occupation of the home and possession of personal property (such as the car and credit or bank cards) on a temporary basis, temporary care and custody of the children, and a specific prohibition against selling or damaging joint property;
- providing immediate protection for the victim; and
- sending an immediate message that the abuser’s behaviour is not acceptable.
There is also the suggestion, from an evaluation of the impact of the Prince Edward Island legislation, 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.
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:
- the philosophy and interpretation attached to the legislation by the various participants (that is, whether it should be used in conjunction with or instead of criminal charges; the definition of what constitutes an “emergency” and the conditions under which it is appropriate to use the legislation), and the degree to which this understanding is shared by players involved in providing services to victims;
- whether training has been provided, to whom it has been provided, and the quality and content of the training;
- the degree of awareness among the public and victims of the remedies available under civil legislation; and
- the time required to process the application for a short-term emergency order.
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. 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.
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. There is also evidence to suggest that the legislation is being used in cases where evidence would be insufficient to warrant criminal charges. 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, 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.
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).
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:
- training should be conducted well in advance of the proclamation of this legislation and should include 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 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 in order to make them effective remedies.
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