Final Report of the Ad Hoc Federal-Provincial-Territorial Working Group Reviewing Spousal Abuse Policies and Legislation

SECTION I: REVIEW OF SPOUSAL ABUSE POLICIES

1. BACKGROUND

Spousal abuse is a serious and complex issue with multiple dimensions and causes. It manifests itself in all societies[1] and across all social classes.[2] It goes by different names, including wife assault, wife abuse, violence against women in relationships, spousal abuse and partner abuse; in some societies it remains nameless, reflecting an unwillingness to formally and publicly recognize something that is perceived to be a “private” matter.[3]

Whatever it is called, violence against one’s current or former spouse, common-law or other intimate partner is not a new phenomenon. Yet, the development of our awareness and understanding of spousal abuse, including its incidence and indicators of violence, as well as its impact on victims, is relatively new and growing. Similarly, the development and implementation of new specific criminal justice system responses to spousal abuse, an issue that had historically been invisible to the system, has been fairly recent.

From 1983 to 1986, federal and provincial Attorneys General and Solicitors General adopted policy directives that required police and Crown prosecutors to charge and prosecute all incidents of spousal abuse where there were reasonable and probable grounds to believe that an offence had been committed. Since that time, other measures have been taken to complement and strengthen the implementation of these policies across the country. These measures include the establishment of dedicated domestic violence courts, services and treatment programs, as well as the enactment of civil legislation for victims of domestic violence. In addition to such measures, numerous inquiries, task force reports and studies have been undertaken to more closely examine the issue of spousal violence in particular cases.

The effectiveness of the criminal justice system’s response to spousal abuse is an issue that has often come before federal, provincial and territorial (FPT) Ministers responsible for Justice for their consideration. Such discussions have often focused on proposed legislative reforms directed at specific forms of spousal abuse. However, at the September 2000 meeting of FPT Ministers, the discussion included a broader consideration of the impact of the charging and prosecutorial policies relating to spousal abuse that have been adopted since 1983. These policies are often described as “pro-charging” and “pro-prosecution” policies; nonetheless, they are, in fact, the applicable standards for all criminal conduct. Their specific application to spousal abuse cases played a pivotal role in helping to make a critical distinction between the criminal justice system’s treatment of spousal abuse as a “criminal matter” and its historical treatment of spousal abuse as a “private matter.” Although the pro-charging and prosecution policies for spousal abuse have been in place in all provinces and territories in Canada since the mid-1980s, the Working Group’s review of the policies represents the first co-ordinated review conducted at the federal, provincial and territorial level.

Accordingly, Ministers approved of the establishment of an ad hoc FPT working group to review the implementation and status of the spousal abuse policies and to report back to Ministers on the results of this review within one year. Ministers also directed an FPT review of proposals, made by Alberta and Ontario, to amend the Criminal Code relating to spousal abuse. This review was subsequently assigned to the proposed ad hoc working group.

The Ad Hoc FPT Working Group Reviewing Spousal Abuse Policies and Legislation was established in November 2000. The Department of Justice Canada and the Nova Scotia Department of Justice co-chair the Working Group. A copy of the Working Group’s mandate is appended hereto in section VI of this Report.

The Working Group comprises at least one representative from each jurisdiction (federal, provincial and territorial governments acting within their purviews), with membership representing police, Crown Prosecutors, correctional services, victims’ services, policy and research. Four sub-committees were established to examine legislation, policies, support services, and structures and models.

The Working Group submitted its first report to FPT Ministers at their September 2001 meeting. This report included a final report on the review of proposed Criminal Code reforms and an interim report on the review of the spousal abuse charging and prosecutorial policies.

With respect to the legislative review, FPT Ministers approved the Working Group’s unanimous recommendation to amend section 127 of the Criminal Code (Disobeying Order of Court) to make it a hybrid offence carrying a maximum penalty of two years when proceeded by indictment. The federal Minister of Justice has since included this proposed amendment in Bill C-20, An Act to Amend the Criminal Code (protection of children and other vulnerable persons) and the Canada Evidence Act (First reading December 5, 2002). The majority of FPT Ministers also accepted the recommendation of the majority of the Working Group against enacting the other four proposed Criminal Code reforms. Lastly, Ministers approved of the extension of the mandate of the Working Group in recognition of the fact that the Working Group had been asked to complete the review of proposed legislative reform on an expedited basis.

Contents of Report

This Report provides an overview of the nature and incidence of spousal abuse in Canada today, summarizes the background leading up to the adoption of the pro-charging and prosecution policies, and reviews the research findings relating to the implementation and effect of the policies in Canada. This section includes a brief overview of the current trend toward the use of alternative justice processes. The section concludes with recommendations, including recommendations on the use of alternative justice processes in spousal abuse cases. The Report then provides an overview of and recommendations on related structures and models, as well as support programs. A compendium summarizing all of these supporting measures is provided in section VI of this Report, and a list of the Working Group’s recommendations is contained in section V.

2. THE NATURE AND INCIDENCE OF SPOUSAL ABUSE IN CANADA

There are numerous indicia of the serious nature of spousal abuse, not the least of which are its physical and emotional impacts on victims and their children. Other indicia include the incidence of spousal violence, its nature, its victims and its consequences for Canadian society. Statistical data and supporting research offer invaluable insight into all of these factors. (Except where otherwise cited, statistics noted herein are taken from Statistics Canada’s Family Violence in Canada: A Statistical Profile 2002.)

The availability of data on spousal abuse in Canada is still a fairly recent phenomenon. In 1980, the Canadian Advisory Council on the Status of Women provided the first national estimate of the incidence of spousal abuse in Canada: “Every year, 1 in 10 Canadian women who are married or in a relationship with a live-in lover are battered.”[4] The author of this 1980 study subsequently described the reaction to the revelation of this estimate as one that shocked policy-makers and the public.[5]

Since that time, we have had the benefit of additional and more comprehensive data, the most significant of which have been Statistics Canada’s Uniform Crime Reporting Survey (UCR2),[6] the 1999 General Social Survey on Victimization (GSS), the 1993 Violence Against Women Survey and the Homicide Survey.[7] Both victimization and police-reported incident-based surveys have advantages and limitations. However, victimization surveys are considered more complete since they interview samples of the population directly about their experiences and do not depend on victims’ willingness to report crimes to police, as is the case with the UCR2 survey.

Who are the victims of spousal abuse?

Both women and men experience spousal abuse. GSS data from 1999 indicate that eight percent of women (690,000) and seven percent of men (549,000) reported experiencing at least one incident of violence by a current or previous partner during the preceding five-year period. Overall, this amounts to 7 percent of adult Canadians.[8] This rate increased to 20 percent for Aboriginal peoples (25 percent for women and 13 percent for men).[9]

UCR2 data for 2000 indicate that spousal abuse victims represent 1 in 5 (18 percent) of all violent offence victims (p. 6). In 2000, women represented 85 percent of victims who reported spousal abuse to police while men represented approximately 15 percent of victims. This proportion has remained relatively stable since 1995, although the number of spousal assault cases reported to police increased for both women and men over this time period (pp. 6-8). The number of criminal harassment cases involving intimate partners has also increased since 1995. Discrepancies between victim survey and police data can be explained by the fact that women report more serious violence with more severe consequences and are more likely than men to report spousal violence to the police (37 percent).

What are the risk indicators of spousal violence?

Data from the 1999 GSS indicate that there is a greater risk of experiencing spousal violence for the following:

  • younger Canadians (15-24), particularly young women;[10]
  • persons living in common-law relationships;
  • persons whose partners abuse alcohol (indicated by periodic heavy drinking);
  • persons living with very controlling and emotionally abusive partners;
  • Aboriginal women; and
  • women undergoing a separation.[11]

Due to the limitations of surveys that are conducted only in English and French, like the GSS and Violence Against Women Survey, the experience of linguistic minorities and recent immigrants or refugees is not as fully known.

What type of violence is experienced?

Although the overall rates of experiencing spousal abuse for women and men were similar, the 1999 GSS indicated that the nature and severity of violence suffered by each were different. For example, women were more likely than men to experience more severe forms of violence: they were more than twice as likely to report being beaten (25 percent versus 10 percent), 5 times more likely to be choked (20 percent versus 4 percent) and twice as likely to have a gun or knife used against them (13 percent versus 7 percent).[12]

Intimate Partner Homicide

In the ten-year period of 1991-2000, homicides involving intimate partners accounted for 27 percent of all homicides. During that period, intimate partners killed 1,056 persons.

  • Of the 846 women killed (80 percent of the total), 481 were killed by a current spouse, 185 by an estranged spouse, 177 by a boyfriend and 3 by a same-sex partner.
  • Of the 210 men killed (20 percent of the total), 161 were killed by a current spouse, 18 by an estranged spouse, 23 by a girlfriend and 8 by a same-sex partner.

In over half of all spousal homicide cases (58 percent), police noted a history of domestic violence in the family.[13]

Data from the Homicide Survey for 1991-99 indicate that the rates of spousal homicide for Aboriginal women were more than eight times greater than for non-Aboriginal women and eighteen times greater for Aboriginal men than for non-Aboriginal men. The spousal homicide rates were higher for Aboriginal persons in common-law relationships than for Aboriginal persons in legal marriages: almost eight times higher for Aboriginal women and six times higher for Aboriginal men.[14]

In general, the spousal homicide rate declined between 1974 and 2001: by 62 percent for women from 16.5 to 6.3 women per million couples; and by more than 50 percent for men from 4.4 to 2.0 men per million couples (p. 9). Declines have been shown for most age groups, most regions of the country and among the higher risk relationship types (separated and common-law relationships). Following fairly steady declines between 1991 and 2000, in 2001 there was a substantial increase in the number of spousal homicides against women: 69 compared to 52 in 2000. There was no change in the number of wives killing husbands (16 in both years). Despite this increase, the number of spousal homicides in 2001 was comparable to the average number over the period of 1991-2000.[15]

This overall decline in the rate of spousal homicides in Canada may be due to changing intimate relationships (for example, the increased average age of first marriage for men and women, and delayed child rearing) and increasing gender equality (for example, rising labour force participation among women), as well as the many different measures undertaken by governments and community groups to address family violence over the past 20 years. These measures include the implementation of spousal abuse charging and prosecution policies in all Canadian jurisdictions, increasing the availability and use of services for battered women, increasing the availability of treatment programs for abusive partners, specialized domestic violence courts and various legislative changes including the introduction of criminal harassment legislation (pp. 12-14).

From 1974-2000, firearms were the most frequently used weapons in spousal homicides. Women were more likely to be killed with firearms (40 percent versus 26 percent) and men were more likely to be killed with knives or other sharp objects (58 percent versus 23 percent). Overall, however, there has been a statistically significant decline in the proportion of spousal homicides involving firearms from 1974-2000 (a decrease of 77 percent for female victims and 80 percent for male victims) (p. 11).

When does spousal abuse occur?

UCR2 data for 2000 indicated that, for approximately two-thirds of women and men, the abuse was inflicted by current spouses (p. 6). Although it is a common assumption that separation and divorce end the risk of spousal violence, 39 percent of female victims and 32 percent of male victims in the 1999 GSS reported the occurrence of violence after separation.[16] Of those who reported post-separation violence, 24 percent stated that the assaults became more severe and 39 percent reported that the violence only began after separation.[17] Female victims (59 percent) were three times more likely than male victims (20 percent) to report being physically injured during violent encounters with their former partners.[18] As well, separated women were at greatest risk of being murdered: rates of spousal homicide were nine times higher for separated women (38.7 per million separated women) compared to those who were legally married (4.5 per million married women) or living common-law (26.4 million).[19]

What is the impact of spousal violence on victims?

The impact of violence on the lives of spousal abuse victims is significant: 28 percent of spousal abuse victims reported in the 1999 GSS that they had sustained a physical or mental condition or problem that affected their daily activities (versus 21 percent of the population who were not victims) (p. 15).

The 1999 GSS indicated that women were three times more likely than men to experience physical injury as a result of the violence (40 percent of women versus 13 percent of men) and five times more likely than men to require medical attention as a result of the violence (15 percent of women versus 3 percent of men) (p. 15).

Aboriginal spousal abuse victims reported experiencing more severe and potentially life-threatening violence by a current or former partner: 48 percent of Aboriginal spousal abuse victims versus 31 percent of non-Aboriginal victims.[20]

In addition to the physical impact of spousal violence on victims, the 1999 GSS indicated that the most commonly reported emotional consequence for both women and men was being upset, confused and frustrated. While 22 percent of male victims stated that the violence had not greatly affected them, only 5 percent of women reported little impact. Women were much more fearful than men as a result of the violence (34 percent of women versus 3 percent of men) and were more likely to state that they feared for the safety of their children (14 percent versus 2 percent). Women were also more likely than men to experience sleeping problems (14 percent versus 4 percent), depression or anxiety attacks (21 percent versus 10 percent) and reduced self-esteem (23 percent versus 6 percent) (p. 15). Female spousal abuse victims also reported twice as much use of medications and drugs as male victims (p. 16).

What is the impact of spousal violence on children?

The 1999 GSS indicated that approximately half a million children, representing 37 percent of all households with spousal violence, were reported to have heard or witnessed a parent being assaulted in the preceding five-year period.[21] This figure rose to 47 percent for Aboriginal spousal abuse victims.[22] Children were more likely to witness violence against their mothers (70 percent) than against their fathers (30 percent).[23]

Further, children were more likely to witness severe acts of violence against their mothers: 53 percent of women and 12 percent of men feared for their lives in these incidents.[24] The 1999 GSS also indicated that in 10 percent of assaults against women and in 4 percent of assaults against men, a child under the age of 15 years was harmed or threatened.[25]

Research indicates that children who are exposed to spousal violence may display signs of emotional, social, cognitive, physical and behavioural problems including lower levels of social competence; higher rates of depression, worry, frustration and anxiety; increased likelihood of developing stress-related disorders; decreased levels of empathy; developmental regression; complaints of physical ailments; and aggressive behaviour.[26] There is also evidence to indicate that children who witness spousal violence are more likely to become a part of a generational cycle of violence: boys who witness the abuse of their mothers are more likely to subsequently become abusive in their own relationships; girls who witness the abuse of their mother are more likely to subsequently enter into abusive relationships.[27]

What are the costs of spousal abuse to Canadian society?

Spousal violence places a significant burden on Canadian society with respect to supplying and maintaining medical services, social services (including counselling and emergency shelter services) and criminal justice system services. GSS data from 1999 indicated the following impacts as a direct result of the violence:

  • Time off from daily activities: 22 percent of all spousal violence victims (33 percent of female victims and 10 percent of male victims) had to take time off from their daily activities as a result of the violence (p. 16).
  • Medical services: 119,000 spousal abuse victims required medical attention. Women were five times more likely to require medical attention than men (15 percent of female victims versus 3 percent of male victims) and to require hospitalization (11 percent of female victims versus 2 percent of male victims) (p.15).
  • Social services: 34 percent of all victims (48 percent of women and 17 percent of men) used a social service (pp. 16-17 and 25). Eleven percent of female victims used transition homes and approximately 2 percent of male victims used men’s centres or support groups (p. 17).
  • Criminal justice system services: 37 percent of female spousal abuse victims and 15 percent of male spousal abuse victims reported incidents of violence to police during the preceding five-year period (p. 18). UCR2 data from 2000 indicate that police laid charges in 82 percent of spousal violence incidents.[28]

In 1995, a study of selected economic costs of three forms of violence—sexual assault, woman abuse in intimate partnerships and incest or child sexual abuse—estimated the partial annual costs of violence against women in four policy areas as follows.

Social services/education $2,368,924,297
Criminal Justice $871,908,583
Labour/employment $576,764,400
Health/medical $408,357,042
TOTAL: $4,225,954,322

The authors of this study estimated that 87.5 percent of these costs were borne by the state, 11.5 percent by the individual and 0.9 percent by third parties.[29]

3. CRIMINAL JUSTICE SYSTEM’S RESPONSE TO SPOUSAL ABUSE

The late 1970s and early 1980s saw the emergence of a growing awareness of and interest in the criminal justice system’s response to spousal assault cases, brought about in large part by the efforts of women’s groups and grassroots movements.[30]

This, in turn, led to the development and piloting of some new approaches.[31] For example, London, Ontario, became a leader in the development and provision of services to battered women with the establishment of the London Co-ordinating Committee on Family Violence in 1980.[32] The committee’s 1981 report included a recommendation that police be directed to lay charges in all cases of wife assault. As a result, in May 1981, the London Police Department became the first Canadian police agency to implement a charging policy for spousal assault.[33]

In May 1982, the House of Commons’ Standing Committee on Health, Welfare and Social Affairs tabled its report, Report on Violence in the Family—Wife Battering. In it, the committee noted that police training (at that time) generally instructed against the arrest of a batterer unless he was actually found hitting the victim or unless the victim had suffered injuries that were “severe enough to require a certain number of stitches.”[34]

On July 8, 1982, the House of Commons unanimously adopted a motion that “Parliament encourage all Canadian police forces to establish a practice of having the police regularly lay charges in instances of wife beating, as they are inclined to do with any other case of common assault.”[35] It should be noted, however, that this motion was initially greeted with “laughter and jeers.”[36] On July 15, 1982, the Solicitor General of Canada wrote a letter to the Canadian Association of Chiefs of Police requesting their support and co-operation in addressing spousal abuse and strongly encouraged them to lay charges in wife assault cases.[37]

Similar measures were undertaken by some provincial Attorneys General over the course of 1982-83.[38] In 1983, the Federal Provincial Task Force on Justice for Victims of Crime recommended the development of written guidelines directing that wife assault be treated as a criminal offence and that the decision to charge or prosecute this offence be made independently of the victim’s wishes.[39]

By 1986, the Attorneys General and Solicitors General of all jurisdictions had issued directives or guidelines to police and Crown prosecutors with respect to spousal abuse cases. See, as an example, section VI of this Report, for a copy of the December 21, 1983, federal directives.

Although the form and content of these directives varied considerably,[40] they shared essentially the same objective—namely, to ensure that spousal assaults were treated as a criminal matter. Police policies generally required them to lay charges where there were reasonable and probable grounds to believe that an assault had taken place. Crown policies generally required the prosecution of spousal assault cases where there was sufficient evidence to support the prosecution, regardless of the victim’s wishes.

In the ensuing years, these directives or policies were revised by all jurisdictions. Revisions often resulted in expanding earlier versions to address additional, specific issues. By the early 1990s, many of the policies of different jurisdictions specifically addressed a range of issues including, for example, the type of conduct and relationship addressed by the policies; the type of assistance and support to be provided to the victim; the use of peace bonds; the procedure to be followed for the withdrawal or staying of charges; and what to do in the case of a recanting or uncooperative victim/witness.

Canada’s experience with spousal abuse cases is not unique. A similar victims’ advocates and grassroots movement during the 1970s in the United States also succeeded in challenging the traditional non-response of the criminal justice system to spousal abuse cases. By the 1980s, many U.S. states had adopted new approaches, including legislative presumptive (or “pro”) and mandatory arrest policies, prosecutorial “no drop” policies and delivery of treatment and intervention programs for offenders.[41]

Today, charging and prosecution policies on spousal abuse remain in effect in all provinces and territories; some, including the federal prosecutorial policy and British Columbia’s Violence Against Women in Relationships Policy, are currently under review.[42] Although there is no “national” charging or prosecutorial policy on spousal abuse, and even though some jurisdictions refer to the policies as “mandatory” and others as “pro,” all jurisdictions continue to support a similar criminal justice system response, the primary objective of which is the criminalization of spousal abuse. In this way, the policies are directed towards both general and specific deterrence: general deterrence by sending a strong and clear message to society that spousal abuse is wrong; and specific deterrence by seeking to prevent the individual abuser from committing further acts of spousal abuse. [43]

Other stated or implicit objectives of the policies are detailed below:

  1. Charging Policy:
    • removing responsibility (and blame) for the decision to lay charges from the victim;
    • increasing the number of charges laid in reported spousal abuse cases;
    • increasing the reporting of incidents of spousal abuse; and
    • reducing re-offending.
  2. Prosecution Policy:
    • promoting more rigorous prosecution of cases;
    • reducing case attrition by reducing the number of withdrawals and stays of charges;
    • promoting victim co-operation in the prosecution; and
    • reducing re-offending.

As noted, although the form and content of the current policies vary across the country, they reflect a number of common elements.

i. Charging Policies

  1. Test: Charges should be laid where there are reasonable and probable grounds to believe that an offence has been committed, regardless of the wishes of the victim. In British Columbia and Quebec, the decision to charge is made by the Crown. In New Brunswick, the decision to lay charges is made by police after receiving advice from the Crown. In these provinces, the Crown must also consider whether it is in the public interest to charge.[44]
  2. Investigation: Police officers who respond to spousal assault calls must conduct a complete investigation and collect all available evidence from all sources. Some jurisdictions have developed tailored investigation forms for spousal abuse cases.
  3. Peace bonds: Peace bonds or recognizance orders should not be used in place of charges where the evidence warrants charges.[45]
  4. Withdrawal/stay of Charges: Withdrawing or staying of charges falls within the purview of the Crown.
  5. Release of an accused from custody by the officer in charge: Release of the abusive partner/accused should be made subject to appropriate conditions including, for example, non-communication orders, firearms prohibitions, and drug or alcohol prohibitions.[46]

    Some jurisdictions require victim notification of the release of the accused as well as of any accompanying conditions.

  6. Victims’Services: Most jurisdictions instruct police to advise victims’of available victims’services, to direct them to such services or to do both.
  7. Pre-charge Alternative Measures: Two jurisdictions currently permit pre-charge diversion of spousal abuse cases, in exceptional circumstances, to Alternative Measures programs formally established under the Criminal Code. In British Columbia where there is Crown pre-charge approval, such diversion can only be made on a decision of the Crown and in accordance with specified criteria. Although Prince Edward Island does not have Crown pre-charge approval, all referrals to Alternative Measures, whether pre-charge or post-charge, are approved by the Crown.

    The Northwest Territories has a protocol that permits the pre-charge diversion of spousal abuse cases to community justice committees in exceptional circumstances. Pursuant to this protocol, a case may only be diverted on the joint recommendation of the RCMP, the community justice committee and the written consent of the Regional Director for the Department of Justice Canada. Although the protocol exists, the Regional Director has not received any such requests for pre-charge diversion and the RCMP does not consider it as an active policy. This protocol is currently under review.

ii. Prosecution Policies

  1. Test: A spousal abuse case should be prosecuted where there is a reasonable expectation or prospect of conviction (based on the evidence) and where it is in the public interest to prosecute.[47]
  2. Reluctant and recanting witnesses: In most jurisdictions, the decision to prosecute is made independently of the wishes of the victim. The fact that the victim is reluctant to co-operate with the prosecution of the accused should not be determinative of the decision to prosecute where independent evidence is available. Where a victim is reluctant or uncooperative, Crown counsel should assess the possibility of securing a conviction without the evidence of the victim (for example, by considering the availability of other evidence) and should consult with the victim with a view to seeking her support and co-operation in the prosecution. Compelling the victim to testify or seeking to find a victim in contempt for non-attendance is generally inappropriate and should only be considered in exceptional circumstances.
  3. Withdrawal/stay of charges: Charges should only be withdrawn or stayed in exceptional circumstances.
  4. Judicial interim release: Release of the abusive partner or accused should be made subject to appropriate conditions including, for example, non-communication orders, firearms prohibitions, and drug or alcohol prohibitions. Some jurisdictions direct the Crown to oppose release on bail where there is a significant history of abuse, including, for example, cases where there have been previous breaches of court orders. Most jurisdictions direct the Crown to advise victims of the outcome of the bail hearing and of any conditions.[48]
  5. Contact with the victim: Crown counsel should try to meet the victim in advance of the trial date and should advise the victim of, and direct her to, available victims’assistance services.

4. ASSESSING THE IMPACT OF THE SPOUSAL ABUSE POLICIES

The spousal abuse policies for charging and prosecution have been the subject of considerable analysis and evaluation in both Canada and in the United States.[49] The Working Group has reviewed much of this research. It has also tried to obtain the input of frontline criminal justice personnel to assess not only their perspectives on the way the policies are working but also to determine any inconsistencies between the policies, as written and adopted, and their day-to-day operation. In reviewing and assessing the impact of the policies, the Working Group has also considered how they have reflected and responded to the diversity of spousal abuse victims.[50]

This body of research indicates that the policies have been both successful and unsuccessful in achieving their objectives. They have also resulted in some unintended negative consequences. Before considering these evaluations, a number of observations must be noted.

First, the Working Group was cognizant of the fact that research from jurisdictions outside Canada may not always be directly comparable to Canadian realities. Indeed, this may even be said for research conducted within Canada. For example, British Columbia, Quebec and New Brunswick have pre-charge Crown approval and, as a result, there may be differences between implementation of the policies in these jurisdictions and in those provinces and territories that do not have pre-charge Crown approval.

Second, the Working Group immediately recognized that there is no single measure of success. The conclusions of individual pieces of research on the success or failure of the policies often seem to depend on whose opinion, or which policy objective, is being considered. By way of illustration: a police officer’s complaint about the charging policy may have less to do with a perceived failure of the policy to achieve its objectives than with a belief that the policy circumvents the officer’s discretion in individual cases;[51]a Crown Prosecutor’s unhappiness with the prosecution policy may have less to do with complaints about the objective of the criminalization of spousal abuse than with the practical difficulty of prosecuting a case with a recanting or reluctant victim/witness; and a victim’s satisfaction with a pro-charge policy does not necessarily translate into support for a pro-prosecution policy.

Last, the Working Group recognized the unique nature of spousal violence. Unlike victims of “stranger” violence, spousal abuse victims often have a relationship that existed not only before, but also endures after, the incident of violence. Over 60 percent of women who flee their abusive partner and take refuge in a shelter will return to their partner and suffer subsequent violence: “domestic violence is by its nature a reoccurring crime with a marked tendency to escalation.”[52] As well, even where the victim has terminated her relationship with the abuser, she may still have a continuing parental relationship with the abuser.

Knowing the cyclical nature of spousal abuse, the question is often asked: why does she stay? These are some of the many reasons.[53]

  • She is often economically dependent on her abusive partner and has nowhere to go (for example, she has no support of family or friends; or she has no knowledge of or is unwilling to seek out an emergency shelter).
  • She may stay and endure the violence for the sake of the children.
  • She may fear that disclosure of the violence may lead to child protection intervention and removal of her children.
  • She is emotionally isolated and feels completely unsupported by friends and family (often as a direct result of manipulative efforts of the abusive partner). She may even feel that she is to blame for the violence.
  • She still loves him and continues to hope that he will stop being abusive and will one day be the way he was when she fell in love with him.
  • She fears retaliation and fears an escalation in the level of violence and increased risk of harm to herself and to her children if she leaves him.
  • She is an immigrant or refugee woman, and she may not want to contact the authorities because she fears that they will deport him because of the violence; she cannot speak English or French; her experience does not identify the police as potential allies; she fears a racist response to her complaint, to her partner or both; or she fears being ostracized by her community.
  • She is a woman from a small or remote community and she may have limited or no access to supporting services and programs.
  • She may not believe that the police can or will do anything to help her (perhaps because she does not know that spousal abuse is against the law, or she thinks the incident is too “minor”, or she has already reported to the police and experienced disbelief or no action by police).

But, no matter what her reasons, she always wants the violence to stop.[54]

The Working Group identified three key objectives of the criminal justice system’s response to spousal abuse:

  • criminalizing spousal abuse;
  • promoting the safety and security of the victim; and
  • maintaining confidence in the administration of justice.

Against this backdrop, the Working Group has considered the implementation and effectiveness of the spousal abuse policies from two perspectives: how successful the policies have been in treating spousal assault as a criminal matter, and how well the policies have recognized and responded to the unique nature of spousal assault as distinct from stranger assault.

i. Pro-Charging Policy

As previously noted, the primary objectives of the charging policy are as follows:

  • to remove responsibility (and blame) for the decision to lay charges from the victim;
  • to increase the number of charges laid in reported spousal abuse cases;
  • to increase the reporting of incidents of spousal abuse; and
  • to reduce re-offending.

The pro-charging policy has increased the number of incidents reported to police and the number of charges laid in spousal abuse cases, and has reduced risk of harm through re-offending.[55]

Increased Reporting

Although the majority of spousal violence victims do not report to police,[56] GSS data from 1999 indicated that 37 percent of female victims and 15 percent of male victims who reported experiencing abuse also reported incidents to the police. The different reporting rates may be due, in part, to the less serious nature of violence experienced by male victims (p. 9).

Trend analysis of the UCR2 data from 1995 to 2001 revealed a 27 percent increase in reporting of spousal abuse incidents to participating police agencies. The 1999 GSS also noted a significant increase in the percentage of women victims of spousal abuse who reported to police, from 29 percent of women reporting to the Violence Against Women Survey in 1993 to 37 percent in 1999. A number of factors may have influenced the increase in reporting including, for example, increased confidence in the criminal justice system’s ability to effectively address spousal abuse cases, as well as changes in police reporting practices, reduced social stigma and greater awareness of the illegality of spousal violence and of available services.[57]

For 93 percent of women and 79 percent of men, the reason they reported the spousal abuse to the police was to stop the violence or to receive protection from the police against the violence (p. 18). For some victims at risk, particularly those who are socially and economically marginalized, including Aboriginal and low-income victims, as well as victims in rural or remote communities, police are often the only source of accessible immediate help.[58]

Police Response

UCR2 data for 2000 indicate that charges were laid in 82 percent of spousal abuse incidents reported to police; the remaining 18 percent of incidents were cleared otherwise. In 13 percent of cases, police did not lay charges at the request of the victim (21 percent for cases involving male victims and 11 percent for cases involving female victims). Police exercised their discretion and did not lay charges in 3 percent of all incidents.[59] These proportions have remained relatively stable since trend data have been available through the UCR2 in 1995.

There are a few reported studies on the issue of police charging practices in spousal abuse cases. For example, a ten-year study of the pre- and post-charging policy’s implementation in London, Ontario, revealed that the number of charges laid by police in spousal abuse cases rose from 2.9 percent in 1979 (pre-policy) to 67 percent in 1983 and to 89 percent in 1990.[60]

Reduction in Re-offending

Available research offers conflicting findings as to the effect of charging policies on the reduction of subsequent offending by spousal abusers. Little is known about whether the charging policy has had any impact on the rate of arrest of spousal abusers; anecdotal evidence suggests, however, that there has not been any increase in the number of arrests made in these cases.[61]

One of the primary pieces of research in this area was conducted in Minneapolis in 1984, which had a pro-arrest rather than a pro-charging policy. It found that the arrest of an abusive partner reduced the rate of re-offending within the ensuing six-month period by half when compared to other, less formal police interventions.[62] Replication of this study in six U.S. cities, however, revealed less positive findings, including that arrest of the abuser could, in some cases, increase the incidence of re-offending when the abuser also presented with other personal characteristics (e.g., unemployment).[63] A more recent replication of the same study found, however, that the arrest of a batterer was consistently related to reduced re-offending and also found no association between arrest and an increased risk of harm for the victim.[64] A similar decrease in the level of violence has also been noted in Canada as a result of the pro-charging policy.[65]

How has the implementation of the charging policy been viewed by key actors?

Spousal abuse victims and victims’service providers have expressed strong support for the pro-charge policy.[66] For example, a 1996 study on the experience with the mandatory charging policy in the Yukon reported that 85 percent of victims thought that the mandatory policy of charging, regardless of the victim’s preferences, was a good one. A further 68 percent of victims reported that the policy made them more confident about reporting future incidents.[67] Similarly, a review of the experiences of service providers working with ethnocultural women victims of spousal abuse indicates support for the mandatory charging policy. Since it removes responsibility for the decision to charge from the victim, it underscores the importance of the societal message that spousal abuse is unacceptable, and it empowers women.[68]

As already noted, the 1999 GSS reported that the reason given by 93 percent of women victims who reported spousal abuse to police was that they wanted the violence to end. For these women, calling the police translates into an expectation that this will make the police attend at the scene, which will in turn, stop the current incident of violence.[69] Spousal abuse victims clearly want the violence to end and for most women, this is synonymous with the pro-charging policy; however, for many victims, it is not synonymous with a pro-prosecution policy.[70]

An unintended negative consequence of the successful implementation of the charging policy has been its effect on spousal abuse victims who are members of over-criminalized communities. In particular, Aboriginal, lower income, visible minority and immigrant women are sometimes more reluctant to call the police in response to spousal abuse incidents for fear of the repercussions of discriminatory treatment of their partner, their children or themselves.[71]

Police reaction to the pro-charging policy has been mixed. In the ten-year study of the pre- and post-charging policy’s implementation in London, Ontario, police perception that the policy is effective had increased from one third in 1985 (four years after its adoption) to just over one half (52.3 percent) in 1990 (nine years after its adoption). In 1990, while almost one-half (48.1 percent) of these police officers believed that the policy helped battered women, two-thirds (64.9 percent) believed that the policy provided an important message to the community. Lastly, this study found that police officers with more years of experience and those in supervisory positions held the most positive views on the policy as compared to constables.[72]

A similar difference in perception between members with more years of experience and those with less, was found in the Metro (Toronto) Woman Abuse Protocol Project. In this study, the 6 of 17 officers who supported the policy had a minimum of seven years of experience.[73] This study also found that a common criticism of the policy is that it inappropriately limits police discretion. Most of the officers interviewed in this study felt that charging an abuser (i.e., a legal response) was not always the best solution to a complex problem that was still viewed by some respondents as something other than a criminal matter.[74]

Other researchers have noted similar findings of the persistence of police attitudes that prevent a positive police response to spousal abuse calls, particularly where the victim does not meet their expectation of a helpless and blameless victim deserving of police assistance.[75]

Some researchers have noted that notwithstanding police concerns about their lack of discretion in spousal abuse cases, in fact, some police officers continue to exercise discretion with respect to charging abusers for breach of protection orders in these cases. For example, a study from 1993-94 of the police in Delta, British Columbia, found that despite a zero tolerance policy, some police officers rarely charged an offender for breach of a protection order even where they were presented with a copy of a current protection order, where the offender was still at the scene and where the victim wanted the offender arrested.[76]

Some members of the police who are supportive of the pro-charging policy have nonetheless expressed frustration with it. The frustration often flows from the knowledge that despite their best efforts to support the victim and to comply with the policy, there is a significant possibility that the victim will recant and the Crown prosecutor will stay or withdraw the charge.

Another criticism of the lack of police discretion in individual cases has been that strict adherence to the pro-charging policy requires police to lay dual charges, i.e., to charge both parties, irrespective of whether one party’s violence was self-defensive. American research has found that “dual arrests/charges” have dramatically increased as a direct result of mandatory charging and arrest policies.[77]

Available Canadian research confirms that dual charging in spousal abuse cases occurs in Canada. For example, the incidence of dual arrests for spousal abuse in Winnipeg was 6 percent (166 cases) in 1992-93 and eight percent (208 cases) in 1996-97, for an average of seven percent through the whole period.[78] In Alberta, dual arrests were made in four percent of cases in 1999, in six percent of cases in 2000 and in five percent of cases in 2001.

Some jurisdictions have responded to this issue by adopting “primary aggressor” models.[79] Such a model typically requires the police to make reasonable efforts to identify the primary aggressor in any spousal abuse incident including, for example, whether either person acted in self-defence (as shown by offensive and self-defensive injuries), the history of violence between the persons, and differences in the physical size between the persons. The Manitoba Lavoie Inquiry recommended the adoption of a primary aggressor rule.[80] Another suggested possible response to this issue is to require Crown review and approval of any counter allegation of spousal violence.[81]

ii. Conclusions

The pro-charging policies adopted in Canada during the 1980s have significantly contributed to the strengthening of the criminal justice system’s response to spousal abuse. Research on spousal abuse confirms that there has been an increase in the reporting of spousal abuse incidents as well as in the number of charges laid in these cases. It has also demonstrated a positive impact in reducing the incidence of re-offending.

While it is not possible to attribute the improved criminal justice system response solely to the adoption of the pro-charging policies, clearly the policies have played an integral role toward this end. Although it is also true that the pro-charging policies have resulted in some unintended negative consequences, the majority of spousal abuse victims nonetheless express strong support for the pro-charge policy. A spousal abuse victim needs to know that if she calls the police to report an incident of violence, the police will come and will, at a minimum, stop the immediate incident of violence. The pro-charging policy ensures a strong and consistent first line of response by the criminal justice system that contributes to ensuring the safety and security of spousal abuse victims.

The pro-charging policy seeks to ensure that the police treat spousal abuse as a criminal matter and to lay charges where there are reasonable grounds to believe that an offence has been committed and, in those jurisdictions with Crown pre-charge approval, it is in the public interest to lay a charge. Measures that contribute to law enforcement’s understanding of and sensitivity to the unique dynamics of spousal abuse help to ensure implementation of the policy in a manner consistent with its objectives.

iii. Recommendations

The Working Group recommends the retention of the current pro-charging policies for spousal abuse cases. In this regard, the current test should continue to apply, namely, that a charge should be laid where there are reasonable grounds to believe that an offence has been committed and, in jurisdictions with Crown pre-charge approval, when it is in the public interest to lay a charge.[82]

These policies are often described as “pro-charging” policies; nonetheless, they are, in fact, the applicable standards for all criminal conduct. Their specific application to spousal abuse cases played a pivotal role in helping to make the critical distinction between the criminal justice system’s treatment of spousal abuse as a “criminal matter” and its historical treatment of spousal abuse as a “private matter.”

The Working Group also recommends that the elaboration of pro-charging policies for spousal abuse specifically address, at a minimum, the following key issues.

  • Test not met: Where there are no reasonable grounds to believe that an offence has been committed, but police nonetheless believe that the victim’s safety may be at risk, police should consider the availability of other responses, including civil protection orders under provincial and territorial legislation on domestic violence, where applicable (see below), and recognizance orders under section 810 of the Criminal Code. However, these alternative responses should not be used in place of charges where the test has been met.
  • Arrest: The pro-charging policy should not be viewed as modifying the standard criteria used to determine whether the circumstances of the case require the arrest of the offender. All of the circumstances should be evaluated before police decide to arrest, with or without a warrant.
  • Dual charges: Where the facts of a particular case initially suggest dual charges against both parties, police should apply a “primary aggressor” screening model, seek Crown review and approval of proposed dual charges for spousal violence, or do both
  • Pre-charge diversion to alternative justice processes: The majority of the Working Group recommends against pre-charge diversion of spousal abuse cases to any alternative justice processes. The minority (British Columbia and Prince Edward Island) only allow pre-charge diversion of spousal abuse cases to Alternative Measures programs established pursuant to the Criminal Code on Crown approval (see below).[83]
  • Investigation: Attending police must be directed to conduct a complete investigation and to collect all available evidence from all sources and not just from or primarily from the victim.
  • Risk assessment: When conducting any risk assessment, police should apply validated tools to assess the safety and security of the victim throughout the process, including for bail purposes. Police should be supported in this regard through on-going training and education regarding risk assessment in spousal abuse cases.
  • Release of an accused from custody by the officer in charge: In assessing whether there are reasonable grounds to believe that the accused should not be released, the safety and security of the victim should be paramount. The officer in charge should consider whether there is a history of abuse including previous breaches of bail or probation conditions, and criminal or civil court orders. Where the decision is made to release the accused, the officer in charge should require the accused to enter into an undertaking that includes appropriate conditions such as non-communication, non-attendance (for example, at residence, schools and place of employment), firearms prohibitions and drug and alcohol prohibitions. The victim should be advised of the decision to release an accused from custody and of any applicable conditions.
  • Victim support: Police should be required to advise of, and direct victims to, available victim services and other supporting agencies (such as shelters).

iv. Pro-Prosecution Policy

As already noted, the pro-prosecution policy has several objectives:

  • promoting more rigorous prosecution of cases;
  • reducing case attrition by reducing the number of withdrawals or stays of charges;
  • promoting victim co-operation in the prosecution; and
  • reducing re-offending.

Research conducted shortly after the adoption of the policy indicates some level of success in reducing the case attrition rate in spousal assault cases. In the London, Ontario, ten-year study, researchers found that prior to the adoption of the policy, 38.4 percent of charges were dismissed or withdrawn; in 1983 (two years after the adoption of the policy), this rate had decreased to 16.4 percent and had decreased further to 10.9 percent by 1990.[84]

A 1988 Saskatchewan study on the rate of prosecution of spousal abuse cases following adoption of the policy reported that 89 percent of charges laid proceeded to court. Of these cases, charges were stayed in 5 percent of cases and withdrawn in 6 percent of cases.[85]

A review of the processing of spousal abuse cases in the Winnipeg Family Violence Court from 1992-97 found that 46 percent of charges were stayed; the next most frequent outcome was the entering of guilty pleas in 43 percent of cases. This study concluded that the prosecution policy (in the case of Manitoba, a zero tolerance policy) served two functions: to catch most of the cases at the start of the process; and to enable the exercise of prosecutorial discretion in applying the policy and to thereby weed out cases such as those for which there was no reasonable prospect of conviction and therefore no reasonable grounds to proceed to court (stayed).[86]

As to whether the prosecution policy has been successful in promoting victim co-operation in the prosecution of offences, the most frequently cited reason for staying or withdrawing spousal abuse charges is the reluctance of the witness and the lack of other evidence.[87] Some Crown prosecutors have commented that the reluctant female spousal abuse victim is more common than not and is a matter of considerable frustration for them.[88] Faced with this reality, it is not surprising to learn that some Crown prosecutors find the pro-prosecution policy to be rigid and an unreasonable constraint on their exercise of discretion, to be impractical and to improperly treat all spousal assault cases the same.[89]

One innovative response to the reluctant witness has been developed in the Winnipeg Family Violence Court. Where a victim indicates that she will not testify because she does not want her spouse incarcerated and when she indicates that her ultimate wish is for the violence to end, the Crown will “testimony bargain,” i.e., the Crown may offer to drop the more serious charge that might result in imprisonment and recommend probation and court-ordered treatment for the offender in exchange for her testimony. If accepted, defence counsel is advised that the victim will testify, which often prompts the accused to plead guilty.[90]

Another response is to more actively and effectively support the victim throughout the prosecution. One recent study found that the two most important determinants of victim co-operation in the prosecution of a spousal abuse case were the availability of victim/witness assistance and support and the availability of videotaped testimony. This same study also found that when a prosecutor perceives a victim to be co-operative, the prosecutor is seven times more likely to prosecute that case than one involving a victim who is perceived to be uncooperative.[91]

Faced with a reluctant, uncooperative victim, Crown prosecutors will stay or withdraw the charges absent other reliable and admissible evidence. Such independent evidence might include statements from other witnesses, 911 tape recordings, medical records of injuries sustained, photographs or videotape of the scene on arrival by police at the scene and of the victim, and other physical evidence.

While most spousal abuse victims are very supportive of a pro-charging policy, primarily because it serves to stop the violence at least in the immediate instance, many victims have expressed a desire for a more flexible prosecution policy that better addresses the needs and realities of victims and their families.[92]

In a survey of 74 female spousal abuse victims in Abbotsford, British Columbia, in 2000, 86 percent of victims indicated support for the charging policy. However, 40 percent of victims did not wish to proceed with the prosecution; of these victims, three out of four cited, as a reason for non-cooperation, that they wanted to reconcile with the offender and almost one-third wanted the non-communication order dropped. Also, 30 percent of all victims reported experiencing financial hardship following the arrest of the abuser.[93]

Other researchers have identified additional factors that influence a spousal abuse victim’s level of co-operation with the prosecution. Victim co-operation is more likely when:

  • the victim receives much-needed social support from family and friends including, for example, financial assistance and assistance with child care; and
  • the victim receives timely and continuous information about the criminal justice system and about the status of her case as well as support throughout the process.[94]

v. Conclusions

Experience with the pro-prosecution policy for spousal abuse indicates that its test is not uniformly interpreted by those within and outside the criminal justice system, which, in turn, has resulted in mixed views on the success of the policy.

Those who interpret the policy as requiring the rigorous prosecution of all spousal abuse cases, irrespective of any other factors, are more likely to conclude that the policy has not been as effective as initially hoped. Those who interpret the policy as requiring the prosecution of all spousal abuse cases where, based on all of the evidence, there is a reasonable prospect of conviction and it is in the public interest to prosecute, are more likely to conclude that the policy has had a positive impact in strengthening the criminal justice system’s response to spousal abuse. The Working Group supports the latter interpretation and perspective.

The research clearly documents some frustrations with the policy by prosecutors, victims and the public alike. Some prosecutors express unhappiness about being expected to prosecute cases absent a co-operative victim/witness. Some victims do not want to support a prosecution against, or to testify against, a partner with whom they have reconciled. Some victims, on the other hand, are of the view that the criminal justice system still does not treat spousal abuse seriously enough, as reflected by the sentences imposed on spousal abusers. As well, members of the public often voice opposition to a process or policy that does not uniformly lead to the traditional criminal justice response namely, incarceration.

The Working Group believes that the pro-prosecution policy, interpreted and applied in the intended manner, will help to ensure a strong and consistent criminal justice system response to spousal abuse. Other measures that will contribute to the effectiveness of the policy include:

  • providing support for the victim throughout the process, including timely and regular information about the process and progress of the case, which increases the likelihood of victim co-operation with the prosecution;
  • enhancing investigative techniques and practices in spousal abuse cases to obtain all available evidence and not just or primarily that of the victim/witness, which enhances the likelihood that these cases will meet the test of the pro-prosecution policy; and
  • offering a broader set of criminal justice system responses (i.e., in addition to a trial and incarceration), with the necessary safeguards, that will strengthen the ability of the criminal justice system both to hold the offender accountable for his actions and to respond to the unique realities of spousal abuse victims.

vi. Recommendations

The Working Group recommends the retention of the current pro-prosecution policies for spousal abuse. In this regard, the current test should continue to apply, namely, that spousal abuse cases should be prosecuted where, based on all of the evidence, there is a reasonable prospect of conviction and it is in the public interest to prosecute.[95]

These policies are often described as “pro-prosecution” policies; nonetheless, they are, in fact, the applicable standards for all criminal conduct. Their specific application to spousal abuse cases played a pivotal role in helping to make the critical distinction between the criminal justice system’s treatment of spousal abuse as a “criminal matter” and its historical treatment of spousal abuse as a “private matter.”

The Working Group also recommends that the elaboration of pro-prosecution policies for spousal abuse specifically address, at a minimum, the following issues.

  • Judicial interim release: Crown counsel should require from police or, where bail hearings are conducted by the police, the investigating police officer should provide, sufficient information to assess the risk of harm to the victim’s safety if the accused is released (for example, the results of the application of validated risk assessment tools or evidence outlining any history of violence, threats of serious violence, prior breaches of protective court orders, the use or presence of weapons, employment problems, substance abuse and suicide threats). The concerns of the victim should be ascertained prior to the hearing. Where the determination is made to release the accused pending trial, Crown counsel should seek appropriate conditions of release, including non-communication, firearms and drug/alcohol prohibitions. The victim should be notified of the outcome of the bail hearing, including conditions of release. In the event of a breach of bail conditions, Crown counsel should consider both prosecuting the breach and seeking an order cancelling the accused’s release.
  • Witness information, notification and support: Spousal abuse victims should be provided with timely information about their case (for example, via police, victim witness assistant or Crown counsel). Victims should also receive continuing support (for example, by victim witness assistants) throughout the process.
  • Reluctant and recanting witnesses: Where a victim is unwilling or unable to testify or to support the prosecution, Crown counsel (via the police or victim service workers) should endeavour to determine the reason for the victim’s reluctance (for example, she may be recanting because no spousal abuse actually occurred or she may be recanting because she has been threatened or pressured to do so by the accused). If the recantation is not credible, Crown counsel should consider whether there is other credible evidence on which to proceed in the absence of direct testimony by the victim. Where there is no longer a reasonable prospect of conviction based on the available evidence, the prosecution should be terminated.
  • Peace bonds: Where the pro-prosecution policy’s test has been met, recognizance orders under section 810 of the Criminal Code should not to be used in lieu of a prosecution.[96]
  • Post-charge referral to alternative justice processes: The majority of the Working Group recommends against the use of post-charge alternative justice processes in spousal abuse cases, except in accordance with the criteria summarized in the next subsection. The minority (British Columbia and Prince Edward Island) only allow post-charge diversion of spousal abuse cases to Alternative Measures programs established pursuant to the Criminal Code on Crown approval and as set out more fully in the next subsection.[97]
  • Sentencing: In making recommendations as to sentence, Crown counsel should:
    • consider section 718.2 of the Criminal Code which makes the abuse of one’s spouse or child an aggravating factor for sentencing purposes;
    • ensure that the victim has had an opportunity to prepare and present a victim impact Statement (section 722.2 of the Criminal Code); and
    • seek appropriate conditions from the court as part of the sentence, such as conditions addressing non-communication and non-attendance, firearms prohibitions, drug/alcohol prohibition and, if appropriate, a condition directing assessment for counselling and/or treatment in an approved abusive partner intervention program.

5. USE OF ALTERNATIVE JUSTICE PROCESSES IN SPOUSAL ABUSE CASES

The past two decades have seen a number of reforms to the criminal law that reflect a growing interest in using alternative processes to deal with criminal conduct and in exploring alternative sentencing options for offenders. For example, young offenders legislation was amended in 1985 to permit the use of Alternative Measures.[98] In 1996, the Criminal Code was amended to permit the use of formal Alternative Measures programs to deal with adult offenders.[99] This reform, together with the emergence of a strong interest in restorative justice processes, generally, has increased public and government interest in exploring alternatives to traditional justice processes to deal with offending behaviour, including spousal abuse.

The Working Group has reviewed the use of these alternative justice processes in spousal abuse cases, including their compatibility with the pro-charging and pro-prosecution spousal abuse policies.

i. Alternative Measures

Objectives of Alternative Measures

When the Criminal Code was amended in 1996 to permit the use of Alternative Measures for adult offenders, these amendments were described as having two primary objectives: “to prevent criminal behaviour and to avoid the harm that can sometimes be done when minor offenders are dealt with through the courts.”[100] As a result, where it is consistent with the need to protect the public, these provisions allow for the diversion of “first-time or less-serious offenders” from the courts to thereby “free up valuable prosecutorial and court resources to deal with more serious cases.”[101]

Over time and as experience with these provisions continues to grow, jurisdictions have begun to consider the merits of using Alternative Measures for repeat and more serious offenders.

How Do Alternative Measures Work?

Section 717 of the Criminal Code permits the use of Alternative Measures when doing so is not inconsistent with the protection of society and where the following conditions are met:

  • the proposed measure is part of an Alternative Measures program authorized by the Attorney General;
  • diversion to an Alternative Measure program is appropriate, given the needs of the offender and the interests of society and of the victim;
  • the offender fully and freely consents to be a participant in the Alternative Measures program;
  • the offender, before consenting, has been advised of his or her right to counsel;
  • the offender accepts responsibility for the act or omission that forms the basis of the offence that he or she is alleged to have committed;
  • there is sufficient evidence to proceed with a prosecution; and
  • the prosecution is not barred at law.

An offender can be referred to an Alternative Measures program either before or after a charge has been laid. The administration of an Alternative Measure does not require court supervision although, if the person does not complete the measure successfully, he or she may ultimately be charged or the charge may be prosecuted.[102]

Offenders who successfully complete Alternative Measures do not have a record of conviction against them.[103] Records made of the Alternative Measure followed and the offender’s response to it cannot be introduced into evidence more than two years after the end of the Alternative Measures process, except for sentencing proceedings in accordance with subsection 721(3) of the Criminal Code.

Alternative Measures programs usually include an out-of-court mechanism for determining the consequences to the offender for the offence. This can occur through a number of different ways, including through an intake interview and assessment, followed by a review by a justice committee, family group conference or mediated dispute resolution process, or by a direct referral to an appropriate program. Ordinarily, the offender enters into an agreement in which he or she promises to do certain things in consequence of his or her behaviour. That agreement might include making an apology, participating in a treatment program, making restitution, serving the community or working with a counsellor or elder.[104]

Existing Alternative Measures Programs and Policies

The federal government and the majority of the provinces have approved Alternative Measures programs in accordance with the provisions of the Criminal Code. The Alternative Measures programs expressly exclude spousal abuse cases in all but three jurisdictions: the Northwest Territories, British Columbia and Prince Edward Island. Manitoba, Ontario, Quebec and Newfoundland and Labrador do not have Alternative Measures programs. The constitutionality of Nova Scotia’s exclusion of spousal abuse cases was unsuccessfully challenged recently.[105]

As previously noted, a protocol exists in some Northwest Territories communities that contemplates pre-charge diversion of spousal abuse cases to community justice committees in exceptional circumstances and on the joint recommendation of the RCMP, the community justice committee and the written consent of the Regional Director for the Department of Justice Canada. There have been no pre-charge diversion requests to date. The protocol is currently being reviewed by the Northwest Territories, the federal government, and the RCMP.

British Columbia and Prince Edward Island allow for the diversion of spousal assault cases to an Alternative Measures program, including pre-charge, in exceptional cases. Neither jurisdiction defines what constitutes “exceptional” circumstances.

In British Columbia, where there is Crown pre-charge approval, the diversion of any cases including spousal abuse cases can only occur on decision of the Crown and in accordance with specified criteria. Although Prince Edward Island does not have Crown pre-charge approval, all referrals to Alternative Measures, whether pre-charge or post-charge, must be approved by the Crown.

Few cases have been diverted to Alternative Measures in these two jurisdictions. The results of a review by Prince Edward Island for the calendar years 1999, 2000 and 2001 indicate that of the total of 556 cases diverted to Alternative Measures processes, only twenty-two cases (four percent) involved spousal abuse:[106]

  • five of these cases were referred pre-charge;
  • fourteen of these cases were referred post-charge; and
  • three cases did not indicate whether the referral was pre-or post-charge.

In British Columbia, approximately one percent of all cases diverted to Alternative Measures processes, involved spousal abuse cases, pre-charge:

  • 26 cases to mid-2002;
  • 65 cases in 2001;
  • 72 cases in 2000; and
  • 47 cases in 1999.

Of these cases, approximately half involved female accused, of which only two cases involved female accused who claimed to have acted in self-defence.

ii. Restorative Justice Processes

Restorative justice is a term that is often used. There is not, however, a clear, common definition of the term across Canada.[107] For the purposes of this review, the Working Group uses the term to describe voluntary processes that complement, support or are alternatives to the traditional criminal justice process and that are available where the offender is willing to accept responsibility for his conduct and to work with the community (including the victim) to repair the harm done and to restore harmony.[108]

Some alternative processes may be restorative in nature but are not necessarily restorative justice processes including, for example, such alternative processes as circle sentencing and victim-offender contact facilitated by correctional authorities. Restorative justice processes offer a range of responses, including intervention at different stages both outside (pre-charge) and within (post-charge) the formal justice system.[109] Unlike Alternative Measures, the rules and procedures that apply to restorative justice processes are not prescribed by the Criminal Code.

There is anecdotal evidence to suggest that some spousal abuse cases are being diverted, both pre-charge and post-charge, to alternative justice processes (i.e., to Alternative Measures or to restorative justice processes). In some instances, this is occurring in a manner inconsistent with the jurisdiction’s prevailing program or policy permitting diversion of spousal abuse cases; in others, it is occurring notwithstanding the jurisdiction’s express policy against such diversion.

Support for the Use of Alternative Measures and Restorative Justice Processes in Spousal Abuse Cases

The traditional criminal justice response of charging, prosecuting and incarcerating an offender is not always responsive to the realities of a spousal abuse case. For example, a traditional criminal justice response that results in the offender’s incarceration may not be the best outcome for the victim where she has reconciled with the offender and where she is dependent on the offender as the primary source of income for their family. Similarly, a traditional criminal justice response that prohibits any contact between the offender and victim may not be practical where the parties reside in a rural, remote or small urban centre where it may not be possible for them to completely avoid contact with each other.

Alternative justice approaches are sometimes advocated by police and prosecutors who are frustrated by a pro-charge/pro-prosecution policy, which they believe does not adequately protect all spousal abuse victims or recognize the difficulties inherent in prosecuting these cases. For example, they believe that in cases where it is likely that a charge will be stayed, withdrawn or dismissed because the victim is uncooperative and refuses to testify, an alternative justice response may still be a better result than, for example, the usual alternative criminal justice response of a peace bond. In such circumstances, participation in an alternative process might provide some additional measure of protection to the victim and assurance to the community that some action has been taken to prevent and deter the behaviour. If nothing else, positive participation in such processes might keep the victim engaged in the system and willing to turn to police and the courts in the event that there is a subsequent incident of abuse.

As well, some argue that the use of alternative justice responses in spousal abuse cases is more consistent with the recent sentencing reforms, including reduced reliance on criminal courts and less use of traditional sentencing options, such as incarceration.

Thus, alternative justice responses are sometimes perceived to be better able to:

  • respond to the fact that many couples will reconcile after the specific incident of spousal violence by supporting measures that are more conducive to a safe reconciliation;
  • reflect the diversity of spousal abuse cases as well as the needs of the parties and societal interests than the traditional justice system;
  • offer resolutions, including treatment of the offender, that may promote more long-term and effective societal interventions in stopping the violence than the incarceration of the offender; and
  • provide victims with a greater voice in the response through opportunities to actively participate in the process.
Opposition to the Use of Alternative Measures and Restorative Justice Processes in Spousal Abuse Cases

The genesis for much of the concern with the use of alternative justice responses in spousal abuse cases is the special and peculiar dynamic inherent in spousal abuse cases as well as the justice system’s historical response to these cases.

Those who oppose the diversion of spousal abuse cases to Alternative Measures processes or the referral of spousal abuse cases to restorative justice processes generally do so in the belief that:

  • the traditional criminal justice process is better able to ensure the safety of the victim throughout and after the process and less likely to re-victimize the victim;
  • the availability of such alternative justice responses may expose the victim to an increased risk of being pressured by the offender (and others) or of further abuse by the offender unless she agrees to the diversion or to participate in it;
  • diversion to any process outside the traditional criminal justice process is inconsistent with the objective of ensuring that spousal abuse is publicly and formally denounced as a criminal act;
  • victims may be less likely to report spousal abuse where alternative justice responses are seen by victims as the primary or probable response to their case and they view this response as less serious than the traditional justice response;
  • referral to alternative justice responses, without the laying of a charge, is contrary to and undermines the existing pro-charge policy and, as such, represents a significant step backwards towards “re-privatizing” spousal abuse;
  • alternative justice processes, particularly restorative justices processes, are less transparent than the traditional criminal justice system; and
  • there is inadequate evidence-based research to demonstrate the effectiveness of Alternative Measures or restorative justice responses or of their sensitivity to the needs of spousal abuse victims.

iii. Conclusions

The Working Group acknowledges the need to continue to strengthen the existing criminal justice system’s response to spousal abuse cases, as well as to continue to explore opportunities to develop new, effective alternative justice responses. However, in considering new alternative justice responses, it is imperative to understand both the dynamics of spousal abuse as well as the successes and failures of the traditional justice response.

There is reason to be encouraged by some of the early, positive anecdotal experiences with alternative processes in addressing other types of criminal conduct. However, there is a paucity of evidence-based research to not only substantiate the effectiveness of these alternative responses with respect to spousal abuse cases, including ensuring the safety and security of the spousal abuse victim and her children, but also to assess these responses vis-à-vis the traditional system’s response.

iv. Recommendations

The majority of the Working Group recommends against the use of alternative justice processes in spousal abuse cases except in the following circumstances:

  1. the referral to the alternative justice process is made post-charge on Crown approval;
  2. trained and qualified personnel, using validated risk assessment tools, determine that the case is not high-risk (in other words, if after a consideration of a variety of factors, including any history of violence, threats of serious violence, prior breaches of protective court orders, the use or presence of weapons, employment problems, substance abuse and suicide threats, the offender is assessed to be at low risk of re-offending and therefore of low risk of harm to the victim’s safety, as well as that of her children and other dependents, both throughout and after the process);[110]
  3. the alternative justice process offers the same or greater measure of protection of the victim’s safety as does the traditional criminal justice process;
  4. the victim is fully informed of the proposed alternative justice process and her wishes are taken into consideration. In addition, victim consent is required and victim support must be provided where the victim will be asked to participate in the alternative justice process;
  5. the offender fully accepts responsibility for his action;
  6. the alternative justice process is part of a program approved by the Attorney General[111] for the purpose of providing alternative justice responses to spousal abuse and is overseen by the Attorney General or the court;
  7. the alternative justice process is transparent (that is, it maintains formal records of the actions taken by those engaged in the process) and it is undertaken in a timely and reasonable manner;
  8. the alternative justice process has the capacity to deal with spousal abuse cases and is delivered and supervised by persons possessing the requisite skill, training and capacity, including the ability to recognize and address any power imbalances, as well as cultural differences; and
  9. the possibility of criminal conviction and sentence remains if the process fails.

The Working Group also recommends that approval of the use of alternative justice processes in spousal abuse cases needs to be supported by the following:

  • the development and delivery of ongoing training and education for those involved in conducting risk assessment and the delivery and supervision of the alternative justice processes and programs, including criminal justice personnel;
  • the development and application of validated risk assessment tools for spousal abuse cases; and
  • ongoing assessment and evaluation of alternative justice responses, including of those used in spousal abuse cases, against new evidence-based research on the effectiveness of these processes, their ability to ensure the safety of the victim and her children, and their ability to reduce the likelihood of re-offending.

Working Group Minority Positions:

  • British Columbia and Prince Edward Island only allow the diversion of spousal abuse cases to Alternative Measures programs established pursuant to the Criminal Code, at either the pre- or post-charge stage, on Crown approval.

Quebec does not have any official Alternative Measures programs and, accordingly, takes no position on the use of these programs in spousal abuse cases.

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