Final Report of the AD HOC Federal-Provincial-Territorial Working Group Reviewing Spousal Abuse–Second Federal / Provincial / Territorial Forum on Spousal Abuse Cases (March 2001)

Summary

Aylmer, Quebec
March 8-9, 2001

Background

Spousal abuse remains a significant problem in Canada. Its impact on families, communities and society is long lasting, damaging, and serious. The criminal justice system faces many challenges in ensuring a sensitive, responsible and constructive response to spousal abuse. Spousal abuse often occurs within the context of an existing intimate relationship which the parties want to continue.  In many cases where the intimate relationship has ended, the victim may nonetheless have a continuing relationship with the abuser as parents.  Importantly, although spousal abuse victims always want the violence to end, not all victims want to engage all aspects of the criminal justice system to achieve this goal.

At the September 2000 meeting of F/P/T Ministers Responsible for Justice, Ministers renewed their commitment to strengthen the criminal justice system's response to spousal abuse. Specifically, Ministers approved of the establishment of the Ad Hoc F/P/T Working Group Reviewing Spousal Abuse Policies and Legislation.  The mandate of the Working Group includes reviewing the current status of the mandatory charging and prosecutorial policies adopted by all Attorneys General and Solicitors General since 1983 and reporting back to Ministers on the results of the review.  The Working Group has also been assigned responsibility for the review of related legislative proposals to amend the Criminal Code put forth by Alberta and Ontario.   The Working Group is co-chaired by Justice Canada and Nova Scotia (Justice).

Ministers also supported Justice Canada's proposal to host the second F/P/T Forum on Spousal Abuse.  The purpose of this Forum is to bring together senior criminal justice officials representing policing, prosecutions, victim services, corrections and policy to update and exchange best practices relating to charging, investigation, and prosecution of spousal abuse cases, as well as protective measures for victims. This Forum follows up on the first F/P/T Forum on Spousal Abuse Cases, which took place in 1998.

Agenda:

The agenda for the Forum was developed in consultation with participants. It included:

  • A presentation by Dr. Holly Johnson, Program Chief, Statistics Canada - Canadian Centre for Justice Statistics, on "Risk Factors Associated with Spousal Abuse";
  • A presentation by Dr. Randall Kropp from the B.C. Forensic and Psychiatric Services and the B.C. Institute Against Family Violence on "Risk Assessment";
  • Three workshops co-led by Provincial/Territorial participants:
    • Provincial/Territorial Family Violence Legislation -- conducted by P.E.I., Ontario, and Saskatchewan
    • Domestic Violence Courts -- conducted by Ontario, the Yukon and Alberta
    • Victim Empowerment -- conducted B.C;
  • Plenary discussions on the appropriateness of the use of restorative processes in responding to incidents of domestic violence;
  • A presentation by Professor Brettel Dawson of the National Judicial Institute on social context judicial education and training.

This summary does not exhaustively describe every topic that was discussed at the Forum.  It is an overview of the issues and is intended to be read in conjunction with the materials compiled for the Forum.  As with the first Forum, although participants were not asked to develop a set of recommendations, some issues were identified as meriting further consideration.

Risk Factors Associated with Spousal Abuse

Dr. Johnson's presentation analyzed risk factors associated with spousal violence, based upon data from the 1999 General Social Survey (GSS), the 1993 Violence Against Women Survey (VAWS), the Uniform Crime Reporting

(UCR2) Survey, and the Homicide Survey.  The presentation included a discussion of trends and patterns in spousal abuse, which help to identify personal characteristics or situations that can indicate risk.

The 1999 GSS data indicates that the rates for spousal violence against men and women are similar (7% of men; 8% of women).  However, the statistics also demonstrate that women are far more likely to suffer more serious consequences from spousal violence than men.  For example, women are more likely to suffer chronic assaults, sexual assaults, assault with a weapon, to fear for their lives, and to require time off work. Women are also more likely to use social services and to report the crime to the police.  It was noted that children are two times as likely to witness violence against their mothers than against their fathers.

Young women (i.e., under 25) are at the greatest risk of experiencing spousal violence. In particular, the rates of assault on female partners are the highest in new common-law unions. Concomitantly, young men in common-law relationships exhibit the highest rates of assaulting their partners. It was suggested that the apparent lack of permanency in new common-law relationships might be a contributing factor to the high incidence of violence.  Low income or unemployed men also exhibit higher rates of assaulting their partners.

Rates of assault on female partners are linked to both the male and female partner witnessing violence in childhood.  This suggests a learned pattern of behaviour both as perpetrator and as victim. Men who witnessed violence as children are approximately three times more likely to commit violent acts, and women who witnessed violence as children are approximately two times more likely to be assaulted. Alcohol is a key and frequent factor; rates of assault on female partners are linked to the male partner's use of alcohol.

Emotional abuse, such as damaging property, threats of harm, denying access to income, put-downs, limiting contact with others and jealousy, constitutes the most significant risk factor for spousal abuse. In cases where emotional abuse is present, a large proportion of victims also experienced physical violence, both during the relationship and post-separation.  Rates of emotional abuse are not affected by class variables and factors such as alcohol, which may indicate that in cases where emotional abuse factors are present, offenders may simply adhere to certain beliefs regarding domination.  This suggests the need for continuing efforts to effect attitudinal change.

The 1999 GSS provided limited data on Aboriginal women and men. Twenty-five percent of Aboriginal women and 12% of Aboriginal men reported experiencing spousal abuse, which is significantly higher than the rates for the general population (7% for men; 8% for women). Further, it was noted that these reported rates are probably lower than actual rates due to a reluctance on the part of some Aboriginal peoples to participate in the study, and the fact that only those who self-identified as Aboriginal are included in these figures.

The majority of violence (approximately 2/3) ends at separation.  Violence began after separation in 14% of cases.   Post-separation abuse committed against the female partner, however, was reported to be more serious than pre-separation violence; women were more likely to be hit with something, beaten, choked, assaulted with a weapon, sexually assaulted, require medical attention and fear for their lives post-separation.  Further, violence that begins after separation is generally of quite a serious nature: while men are more likely to be threatened, slapped, kicked, bit or hit, women are more likely to be beaten, choked, assaulted with a gun or a knife or experience sexual assault.

Women are generally more likely than men to report spousal abuse to the police. However, all rates of reporting to police by both men and women are lowest when the union is current (26% for women; 6% for men), increase when the partners have separated and the violence has ended (37% and 23%), and increase further when the violence occurs after separation (55% and 39%).

Ex-husbands exhibit the highest rates for stalking of intimate partners, followed by boyfriends, husbands, then female partners.  Spousal homicide rates are highest for separated women, followed by common-law women, then married women, although the overall rates have declined in recent years.  Early separation is the greatest risk period for women: the Homicide Survey reported that half of homicides of female partners occurred within two months of separation, in cases where the time period was indicated.  There is, however, no such pattern for men.  The rates of spousal homicide are the highest for Aboriginal women.

Most ex-spouses are killed in the woman's home irrespective of whether it is the female or male partner who is killed.  This may indicate that self-defence is an issue. On a positive note, comparisons of 1993 data (i.e., data from the VAWS) and 1999 data (i.e., data from the GSS) show a general decline in non-lethal and lethal violence, as well as an increase in women reporting to the police and using social services.

Participants noted that despite anti-violence public education campaigns directed at youth, young women are still most likely to experience spousal abuse, which indicates that education initiatives alone are not sufficient to achieve the desired results or to reach the appropriate target groups.  An increased effort to address the issue of spousal abuse in schools was identified as a possible response to the problem.  Suggestions for possible educational initiatives included teaching violence indicators to youth in order to increase their ability to recognize the risk of violence in certain types of behaviour.

Risk Assessment

Dr. Kropp's presentation focussed on risk assessment in cases of spousal abuse.  Five main risk assessment tools currently exist:  the Danger Assessment, the Domestic Violence Screening Inventory, the Kingston Screening Instrument for Domestic Violence, Mosaic-20 and the Spousal Assault Risk Assessment Guide (“SARA”).  The last tool was developed by Dr. Kropp.

Spousal assault was defined as any actual, attempted or threatened violence against a past or current intimate partner, and emphasis was placed on violence as a choice; the cause of violence is a decision to act violently, which is influenced by a host of biological, psychological and social factors.  Risk is the likelihood or probability that violence may occur.  In determining risk, one must consider the nature, severity, frequency and imminence of the violence.  The goal is to prevent not predict violence, to help guide intervention, improve consistency and transparency of decisions.  The focus should be on the offender's behaviour and using multiple sources and methods.  Importantly, risk is not related in a linear manner to the number of risk factors present.

The SARA uses a variety of risk factors.  For example, the offender's spousal assault history is an important risk indicator.  It may include past criminal history, past assaults, jealousy, past use of weapons or death threats, recent escalation in the severity or frequency of the violence, past violation of no-contact orders, extreme minimization or denial, or attitudes that support or condone assault.  The SARA also considers psychosocial adjustment factors such as recent relationship problems, recent employment problems, substance abuse and dependence, recent suicidal or homicidal intent, recent psychotic and/ or manic symptoms or personality disorders.

The nature of the current offence can also indicate risk, for example, whether the assault was severe and/or involved sexual assault, whether weapons were used or no-contact orders were violated.  Importantly, considerations regarding risk must never be limited; factors unique to a particular case must always be considered, such as, violence toward animals, coming from a country where the offender has been the victim of political persecution, stalking etc.

Particular risk factors associated with stalking were discussed. Offenders may exhibit any of the following behaviours: obsession or infatuation, distorted thinking, possessiveness, anger/ retaliation, narcissism.  Further, societal factors may also come into play, such as the image of the male as the pursuer and the female as the trophy, as presented in films, television and literature.  Such portrayals may blur the distinction between romance/courtship and harassment.

The procedure for assessment should always involve investigating multiple sources and using multiple methods such as questionnaires, collateral records, standardized testing, interviews with offender and victim if possible, etc.

To manage risk, many potential strategies are required.  Available strategies include: counselling and treatment for spousal assault, incarceration, victim safety plans, and drug and alcohol treatment. Management begins with a proper risk assessment, and then supervision and treatment strategies can be developed accordingly.  Risk assessment can also be used to inform victims of any potential danger.

It was noted that Alberta has developed a nine-point risk assessment tool based on the SARA for bail and bail review. The most serious difficulty in effecting constructive risk assessments was identified as collecting the right information expediently.

WORKSHOP: PROVINCIAL / TERRITORIAL VICTIMS OF FAMILY VIOLENCE LEGISLATION

Led by Ellie Reddin, Rob McKendrick and Joanna Kuras

Currently, the following provinces/territories have enacted family violence legislation: Saskatchewan, P.E.I., Yukon, Manitoba, Alberta and Ontario (although Ontario's legislation is not yet proclaimed).

Reasons for Enacting

Since Criminal Code provisions are not intended to focus on victim assistance, gaps exist in the way the Code deals with cases of spousal abuse.  Family violence legislation attempts to address those gaps.  The legislation is victim-centred; it attempts to help victims continue with their lives with as little disruption as possible, by addressing victims' immediate needs, some of which may include:  the need to stay in the family home, to decide who will have care/custody of the children, to have temporary possession of specified property to enable the victim to carry on daily routines (e.g. car, bank cards, etc.), to have police standby during the removal of personal property, to prevent the abuser from selling or damaging the family's property, to be free from ongoing contact/harassment, and of course, to stop the violence.  The legislation is intended to deal with crisis situations immediately, since long waiting periods between the crisis and actually receiving protection from the criminal justice system are common.

Key Components of the Legislation

The component most common to all family violence acts is the emergency intervention/protection order, which is essentially a short-term order available immediately with the victim's consent where family violence has occurred and the situation is urgent or serious.  Also available in most jurisdictions are victim assistance orders, which are longer-term.  They can address issues such as visitation and financial matters and may replace emergency intervention orders.

Implementation Issues

Consistency must be developed in the interpretation of what constitutes an emergency. The legislation is meant to apply to situations which are urgent and serious but not necessarily life threatening. PEI's legislation was in fact amended to give effect to this distinction.  Essentially, key players must understand the dynamics of family violence so that they can determine those situations in which the legislation is applicable.  Access to legal aid is also key, particularly in relation to victim assistance orders.  In many cases, victims do not qualify for legal aid but neither can they afford a lawyer.  Ongoing training and re-training for key players, particularly police, is important, as is ensuring that the process is as efficient as possible.

Discussion

Some participants expressed concern regarding the appropriateness and effectiveness of this type of family violence legislation.  For example, some felt that the relevant interests are already addressed by existing Criminal Code provisions; with appropriate training relating to arrest and the issuance of warrants, police officers could respond more immediately in crisis situations using existing Criminal Code provisions.  Concern was also expressed that a new set of possible orders, in addition to s. 810 peace bonds, family law legislation restraining orders and others, may simply add another layer of confusion, which could lead to no response at all.  Moreover, some felt that civil orders would inevitably become a substitute for charges; however, PEI has not found this to be the case.

On the other hand, some expressed approval for a multiplicity of different orders, maintaining that in the event that one is withdrawn, another would take its place, thus providing increased protection for victims. Although most agreed that the legislation is beneficial at the time of initial crisis or where the evidence is insufficient to make an arrest, some felt that the more complicated issues, such as custody and access or financial matters, would have to be dealt with through the family law court process in the longer term.

Concern was also expressed regarding the legislation's constitutionality.  PEI's legislation was subject to a constitutional challenge, but was upheld.  Mention was made of a current challenge before the Manitoba court to its family violence legislation, R . v. Fairchuk .  Many jurisdictions are monitoring the Fairchuk case.

The importance of disseminating information on civil approaches to spousal abuse was discussed, especially in relation to the RCMP who deliver policing services under contract in eight jurisdictions.  Since the RCMP are implementing provincial and territorial legislation and policies, it is imperative that members be aware of all of the tools available to them in dealing with cases of domestic violence.  Particular need for support was identified for members who move from jurisdiction to jurisdiction, to ensure that all are aware of the resources in the communities in which they serve.

In Nova Scotia, although no family violence legislation is currently in place, the Dean of the Dalhousie Law School is examining the possibility of implementing such legislation. Interest has been expressed in the concept of emergency protection orders, but not in the longer-term victim assistance order. Several years ago, model legislation was prepared, which led to research and consultations resulting in P.E.I.'s legislation.  The Law Reform Commission of Nova Scotia recommended at the time not to implement it, on the grounds that the legislation presented a danger of being used in place of laying charges.  New Brunswick is currently considering implementing family violence legislation.  Quebec considered implementing legislation in 1996, but decided against it for the same reasons as Nova Scotia. Newfoundland's experience in relying on Criminal Code provisions has been successful.

WORKSHOP:  DOMESTIC VIOLENCE COURTS

Led by Daniel Mark and Diane Nannarone from Ontario, Karen Ruddy (Justice Canada – Whitehorse) and Sandra Bryce from the Yukon, and Janice Darling from Alberta.

Ontario

The domestic violence court was piloted in Toronto and has since been implemented in sixteen different communities.  Further expansion across the province is currently underway.  This court process is intended to address the unique dynamics in domestic violence cases, which involve intimate partners rather than strangers, and to respond to victims' expressed dissatisfaction with traditional criminal justice processes.  A major impetus for the implementation of the process, however, was the Coroner's Inquest into the May/Iles case.  The Coroner's Report, released July 1998, resulted in a series of 213 recommendations, including: providing increased access to domestic violence courts and to services which coordinate all public sectors including health, social services, education and justice.  As a result, four prosecutors were specially assigned to handle domestic violence cases and a courtroom dedicated to domestic violence was established to accommodate the volume of cases in Toronto.  The Toronto police assigned a domestic violence squad to each shift.  These officers received special training on the operation of the court and the specific dynamics of domestic violence cases. 

The four tenets of the process include:

  • Early intervention
  • Victim support
  • Effective investigation and prosecution
  • Accountability of the offender

Police and prosecutors work collaboratively on investigations and with victim services to provide early and continued access to information, support and referrals to community services.  The domestic violence court involves two components:  early intervention and coordinated prosecution. In cases where the victim and offender wish to resume contact or to reconcile, the early intervention component allows the offender to plead guilty and have immediate access to counseling programs to deal with abusive behaviour (Partner Assault Response, formerly known as batterers' counseling).  Before the offender is permitted to enroll in the program, the Crown receives input from the victim and considers whether the offender:

  • has a history of abuse
  • has a criminal record for domestic violence
  • used a weapon or threatened the victim
  • caused substantial physical injury to the victim

If the offender is deemed to qualify, the offender may enroll in the program and return to court for sentencing, once the counseling has been completed.

In the coordinated prosecution component, police gather all available evidence to support the prosecution, including statements from other witnesses, photos of the scene and injuries, 911 tapes, KGB sworn video statements and medical records.  Crowns work with police and victim services to prepare and support the victim through the trial process, using all available evidence at trial to support the prosecution's case.

Ontario indicated that an evaluation of its domestic violence courts had been conducted, but the report is not yet publicly available.

Yukon

The Domestic Violence Treatment Options Court is currently being piloted in Whitehorse.  All domestic violence cases are heard in this court on one afternoon per week.  The process involves federal prosecutors, defence counsel, legal aid duty counsel, victim services and probation staff, and a specially assigned judge.  Procedures include a pre-court meeting with all participants except the judge one hour prior to the hearing.   The police try to fast-track disclosure so that most cases are dealt with in one or two hearings.

If accused are willing to accept responsibility and undergo treatment, they are ordered to attend the Family Violence Treatment Program to undergo a two-week assessment.  Participation is not limited to first time offenders or to minor offences.  An accused that is accepted into treatment enters a guilty plea and treatment is initiated.  The sentence is usually conditional on the successful completion of treatment and no further offending.  However, treatment can be conducted in combination with other sentences, including incarceration.  If substance abuse is in issue, then specialized treatment is also mandatory.  Treatment is usually ongoing for 2-3 months.  Approximately eighty percent of accused opt for treatment and victim consent is not required.   No-contact orders apply to all offenders in treatment, which provides victims with a violence-free opportunity to explore options.  A no-contact order will not be removed unless the victim so requests and the removal is approved by the offender's treatment team.

Victims are always offered professional support, which is often ongoing for up to one year following the reported offence.  In some cases, where the offender has successfully completed treatment, charges are dropped or stayed; however, this occurs only rarely. Offenders are required to undergo treatment and report monthly to a judge on their progress.

There are presently no statistics on recidivism rates of offenders who have completed treatment in the Yukon; however, the Canadian Research Institute for Law and the Family is conducting an evaluation.

Alberta

Calgary has recently instituted a community-based model, involving school boards, hospitals, agencies working with seniors, ethnic groups, crisis phone lines and men's treatment programs.  Child welfare agencies are automatically involved when children are in the home.  Support is provided to victims; for example, cell phones with a “911” button are routinely distributed.  A domestic violence unit also exists, which involves 11 officers, dedicated medical staff trained in recognizing signs of domestic abuse, 2 specialized prosecutors and an accelerated court process.  There are presently no specially assigned judges to domestic violence cases due to defence bar criticism.

As in the Yukon, one hour prior to the hearing, all participants except the judge meet to conduct a risk assessment.  Victim advocates are present to establish a safety plan. Defence counsel is, as a result, fully aware of the evidence and case history.  Priority is placed on treatment, with the trial process as an alternative, if treatment should fail.  Peace bonds are typically served for a period of up to one year and are closely monitored by the police.  Breaches are dealt with harshly. 

WORKSHOP: VICTIM EMPOWERMENT

Led by Susanne Dahlin, Director of Victim Services in B.C.

Victims often do not want to engage the full criminal justice process, particularly where that engagement results in a loss of power.  Pro-arrest / pro-charge policies remove power from victims, making it more likely that victims will want to disengage from the criminal justice system, for example, by recanting at trial.  By involving the victim in the criminal justice process, victims may become more willing to participate fully.

Possible strategies to empower victims were discussed, which include:

  • Addressing victims' psychological needs
  • Managing security issues, including accommodation and financial concerns
  • Understanding social pressures
  • Finding alternatives to victim testimony
  • Investigating alternatives to prosecution

Factors causing victims to disengage from the criminal justice system were discussed, which include:

  • Minimization of victims' feelings of danger, mistrust and fear
  • Unaddressed fears of losing children due to custody or maltreatment hearings
  • Authorities' lack of awareness of social or cultural pressures to recant
  • Authorities' inattention to victims' economic security
  • Fear that engagement of the criminal justice system will lead to an increase in the violence

An effective criminal justice response would consider the above factors and recognize that the victim is the first link in the chain to successful prosecution.  Interviews with victims and key players, such as community service workers, have indicated that respectful treatment on first contact with the criminal justice system positively affects victims' assessment of their treatment throughout the process, even in cases where the outcome was not what victims had wanted.

B.C. has recently developed a policy to guide the exercise of police discretion at key points in the criminal justice process.  This policy resulted from an inquest into a case which involved the murder of a woman by her spouse.  The inquest generated several recommendations which are addressed in this new policy, i.e. discretion in the hands of police should be restricted, all components of a full investigation should be completed where warranted, and supervisor approval should be required where it is decided that an investigation not be pursued.  The new policy also requires that a risk assessment be completed to help determine whether an investigation should be pursued.  Where an investigation is mandated, it must be thorough and complete so that other sources of information are available should the victim decide not to testify.  The intention is to empower the victim, but leave the ultimate decision to key players within the criminal justice system.

Although a pro-active arrest policy is important, a support system must be immediately available to victims so that they understand the process and receive support and guidance. In high-risk cases in Vancouver, a victim partnership has been established which pairs a specially trained police officer with a victim counsellor.  High-risk cases are identified through a screening questionnaire which involves a risk assessment. The partnership program is in its second year of operation and many feel that victims are more willing to proceed through the entire criminal justice process, because of intensive early intervention.

Co-ordination of support services for victims at the field level is also an important focus; for example, factors leading to reluctance to engage the criminal justice system have been addressed by making social agencies available, and helping with economic and language issues.  Further, Violence against Women Co-ordination Committees have been established, which involve various social service agencies convening and attempting to identify gaps in the safety net.

The importance of identifying the safety needs of the victim at all times throughout the process was emphasized. To this end, it was agreed that training is an integral factor.

Restorative Justice

After acknowledging the varying definitions and understandings of the term "restorative justice," the following general definition was used for discussion purposes: a restorative justice process is one that requires voluntary participation of the victim, offender and the community.  It addresses a conflict and seeks to repair harm, heal the victim and community, and help the offender.

After viewing the Law Reform Commission's recent video on restorative justice, the following questions were discussed in small groups: Is it ever appropriate to use restorative justice processes in spousal abuse cases?  If so, under what circumstances? How can we rationalize using restorative justice in cases of spousal abuse in light of mandatory policies?

In considering whether restorative justice is appropriate in spousal abuse cases, the most significant problem identified was the risk that the implementation of restorative processes be interpreted as a retraction of the message that spousal abuse is a criminal offence.  The mandatory charging and prosecution policies were designed to counter the view that spousal abuse is a private affair, by requiring the system to recognize that such abuse is a serious social problem that violates the law.  Any modification of these policies, which the use of restorative processes would necessarily entail, could detract from the message that the policies were intended to convey.

There was some agreement that maintaining pro-charge policies, while examining the possibility of restorative processes only at the post-charge stage could minimize this concern.  In fact, many jurisdictions indicated that some support existed for considering the use of restorative processes at the post-charge stage.  However, risk assessment and support services were viewed as essential to the proper working of restorative processes.  Consequently, lack of resources was viewed as one of the primary impediments to implementation.

Power imbalances between victim and offender were also viewed as a significant barrier to the successful implementation of restorative processes in the spousal abuse context.  It was agreed that safeguards would be necessary to ensure that victims are not being coerced into pursuing an alternative approach. Further, it was accepted that not all offenders would be appropriate candidates for restorative approaches.  However, many agreed that restorative processes could play an important role in cases where the victim does not want to fully engage the criminal justice system.  Rehabilitation of offenders was also seen as an important goal, particularly since offenders often continue their relationships with victims.  Therefore, provided that guidelines for determining appropriate candidates are in place, as well as victim services to ensure a safe and non-coercive environment, there was some agreement that the mandatory prosecution policies could be revised to allow for restorative processes in appropriate cases.

Finally, there was general consensus that any implemented restorative process should function as a complement to the traditional criminal justice system, so that non-compliance with restorative processes would have criminal justice consequences.

A model developed for instituting a restorative process in the Yukon was discussed.  It involves the following requirements:

  • the offender must take full responsibility without minimizing the harm or blaming the victim
  • the victim must be fully supported by victim services to ensure that there is no coercion
  • an assessment must be undertaken to determine whether the offender is a good candidate for the process e.g., medical/health or other issues that need to be addressed must be identified before engaging a restorative process
  • ongoing monitoring must be pursued throughout the whole process to ensure that the offender follows the program and the victim receives help

In Manitoba an informal restorative justice program is currently in place.

Judicial Education - Social Context

Dr. Brettel Dawson, from the National Judicial Institute (NJI), presented on judicial social context education. The NJI was established in 1988 to provide overall leadership in judicial education.  In 1996, the Department of Justice Canada provided funding to the NJI that permitted the formation of the Social Context Education Project.  In 1997, Canada's Chief Justices committed to providing opportunities for the judges in each of their courts to attend the NJI's social context programs in each of the three areas of gender equity, racial equity and Aboriginal Justice.  The goal is to promote a common understanding of social contexts that are particularly relevant to judicial decision-making.

The NJI has developed a curriculum to specifically address violence against women and children, which involves specialized workshops, discussion questions, videos and community panels.  For example, a workshop on violence against women and children was developed to provide judges with an opportunity to discuss issues that arise when judges are dealing with allegations of physical and sexual violence against women and children.  Issues include current substantive law and evidentiary issues such as disclosure of medical and counselling records, prior inconsistent statements and prior sexual conduct.  Judges examine ways to minimize the impact of the process on witnesses without compromising due process.  Also, a video involving issues of spousal abuse was developed, featuring a family law case in which the credibility of the witnesses was in issue.  Judges were invited to engage in discussions on the video.

Academic and community leaders familiar with disadvantage and diversity issues have also been directly involved in the planning of the content and delivery of programs.  Their participation has made available information which is not often accessible to judges. One particular session involved a talk given by a person in charge of community outreach who discussed issues concerning spousal abuse.

Every program delivered by the NJI is evaluated and the results are shared with the Social Context Education Project's Advisory Committee and each court.

Conclusion

At the conclusion of the Forum, several significant issues were identified as warranting further exploration, consideration or development, including:

  • the implementation of a spousal abuse investigation checklist for all domestic violence cases;
  • supplementing the criminal justice system with provincial/territorial family violence legislation;
  • preparing key players for the introduction of restorative justice processes and other alternative measures;
  • improving procedures to support witnesses so as to reduce the possibility of recanting;
  • institution of risk assessment training for prosecutors and the judiciary to develop a common language.
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