B AC K G R OU N DER. This document is also available on the website of the BC Association of Specialized Victim Assistance and Counselling Programs:

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1 B AC K G R OU N DER ISSUE: The Ministry of Attorney General Criminal Justice Branch review of their policies including those governing violence against women in relationships and the implications this has for victim safety. This backgrounder is based on the information available at June 6, In addition to the sources cited, it incorporates input from many experts on violence against women, including those involved in the Community Coordination for Women s Safety project. This includes the BC Association of Specialized Victim Assistance and Counselling Programs, BC Municipal Chiefs, the Department of Justice National Crime Prevention Centre, the Justice Institute of BC, Multilingual Orientation Service Association for Immigrant Communities (MOSAIC), the Pacific Association of First Nations Women, RCMP E Division, representatives from the criminal and civil bar, and Victim Services Division (BC Ministry of Public Safety and Solicitor General). This document is also available on the website of the BC Association of Specialized Victim Assistance and Counselling Programs: Go to w w w. e n d i n g v i o l e n c e. o r g Select Community Coordination for Women s Safety Select Documents-Coordination Resources FUNDING PARTNERS: Law Foundation of BC Ministry of Public Safety and Solicitor General Ministry of Community, Aboriginal and Women s Services National Crime Prevention Centre: Community Mobilization Program & Crime Prevention Partnership Program

2 BA CK GROUND: The Ministry of Attorney General Criminal Justice Branch is conducting a review of their policy governing the laying of charges in violence against women in relationships (vawir) cases. This is part of a larger review of all their policies. Criminal Justice Branch is considering giving individual Crown prosecutors greater discretion in deciding whether charges should be laid in spouse assault cases. There are also indications that Criminal Justice Branch is considering the expanded use of alternative measures in vawir cases. 1 (The Province June 6/02 p. A20) In terms of charging, the current Provincial Violence Against Women in Relationships Policy (updated: January 2000) takes a pro-charge approach. Crown discretion regarding charging is not eliminated but is guided by the Policy. The relevant provision states: The Crown counsel charge standard requires that: (i) there be a substantial likelihood of conviction; and (ii) a prosecution of the accused is in the public interest. Given the incidence of violence against women in relationships in Canada, the prosecution of such offences is almost invariably in the public interest. The decision to charge or continue the prosecution shall not be governed by the wishes of the victim. Crown counsel should consider charges in such cases, even if the nature of the offence is minor. This pro-charge provision is different from zero tolerance or mandatory charging policies in other jurisdictions which eliminate Crown discretion under certain circumstances. B.C. s pro-charge approach is augmented by pro-arrest policy provisions which apply to police. They provide that police should conduct a complete investigation in every case and arrest whenever legal grounds exist. Police and community justice partners have expressed concern that the possible expansion of Crown discretion now being considered by Criminal Justice Branch is a shift away from the current provincial pro-charge approach and represents a possible retreat from the current articulation of public interest contained in our current Provincial VAWIR Policy. ( Given the incidence of violence against women in relationships in Canada, the prosecution of such offences is almost invariably in the public interest. ) In British Columbia, VAWIR cases are often associated with high rates of stays of proceedings. The reasons for this are unclear. 2 Due to recent provincial cutbacks, fifteen Crown counsel have been laid off. The Crown Victim Witness Service Program has 1 For a discussion of issues related to the use of alternative measures in violence against women cases, please refer to the CCWS backgrounder entitled: Concerns and Questions Related to the Potential for an Increase in the Use of Alternative Measures in Violence Against Women Cases. 2 For a discussion of possible pressures and fears affecting a victim s ability and willingness to testify against her abuser and ways in which the criminal justice system might respond, please refer to the CCWS Backgrounder entitled: Reluctant Witnesses in Violence Against Women in Relationships Cases Addressing Barriers to Pro-Active System Involvement. 2

3 recently been cut entirely. (Research Advisory on the Provincial Cuts and Violence Against Women, 2002) The Criminal Justice Branch policy review will occur over the next few months. According to Attorney General Geoff Plant: The goal of this review is to have a criminal justice policy that responds appropriately to spousal abuse by ensuring that those who commit crimes are charged, accused and convicted of them. (Hansard May 30/02) The Attorney General has indicated that public consultation will be held before any final policy changes are implemented. (CBC Radio Interview Early Edition June 6/02) The Attorney General has expressed interest in hearing suggestions from all British Columbians as to how to examine and if necessary reform the criminal justice policy on violence against women. (Hansard May 30/02) Enhancing public safety has been identified as a priority by the BC government. A commitment has been made to find new ways to reduce domestic violence and increase protection for women and children. A specific commitment has been made to introduce provincial domestic violence legislation to enhance protection for victims. (A New Era for Children and Families; A New Era for Public Safety.) 3

4 ANALYSIS During the 1980s, a more aggressive criminal justice system response to domestic violence was adopted including the development of pro-arrest or pro-charge policies in a number of jurisdictions. A number of factors contributed to this change including: advocacy by women, police department liability, and evaluation research. In 1982, the Federal Ministry of the Solicitor General sent a directive to the Executive of the Canadian Association of the Chiefs of Police encouraging their cooperation in ensuring officers lay charges in all cases of wife assault in which there were reasonable and probable grounds to believe that an assault had taken place. The RCMP subsequently developed a national charging policy in February B.C. developed its first Provincial Wife Assault policy in In 1993 it was significantly amended and renamed the Violence Against Women in Relationships Policy. The revised Policy was developed as an overarching policy framework and a teaching tool for all sectors of the criminal justice system including Police, Victim Services, Corrections and Crown prosecutors. The Criminal Justice Branch and other affected sectors were involved in both the development and implementation of the Policy. The Provincial VAWIR Policy was last updated in January Throughout the life of the Policy the pro-charge approach has been maintained. The VAWIR Policy is an umbrella policy. Specific operational policies developed by RCMP, Police, Corrections and Crown are meant to be consistent with the overall approach taken in the provincial VAWIR Policy. RCMP E Division s Violence in Relationships Policy is one clear example of this. At the September 2000 meeting of F/P/T Ministers Responsible for Justice, Ministers approved of the establishment of an ad hoc F/P/T Working Group to review the current status of the mandatory charging and prosecutorial policies adopted by all Attorneys General and Solicitors General since 1983 and to report back to Ministers of the results of the review. There is general agreement that pro-charge approaches in vawir cases have been successful in increasing the number of charges laid, in promoting rigorous prosecution and in reducing case attrition in the prosecution process. (Landau, 1998). Evidence from existing studies generally indicates that pro-arrest and pro-charge policies, combined with coordinated criminal justice system responses, produce the best results in terms of victim satisfaction, victim safety, reduction in recidivism rates and increased success in prosecution of cases. Vigorous policies have been found generally to benefit all victims. The research does not indicate that pro-charge policies have a negative effect on marginalized groups and on victim willingness to involve the criminal justice system. In most Canadian provinces and territories it is police and not Crown counsel that make the charging decision. In possibly moving away from a pro-charge policy in Vawir cases, BC s Criminal Justice Branch will be isolating itself from the long-standing approach taken by other Canadian provinces, territories and the federal government. 4

5 CONSIDERATIONS FOR A COORDINATED COMMUNITY RESPONSE 3 The Need for More Information 1. What specific changes to Criminal Justice Branch policies are being proposed? 2. If a change in the public interest criteria of the current charge approval standard in vawir cases is being proposed, what is the empirical basis for this change? 3. How and when does the Attorney General intend to fulfill the recent commitment he made to consult with the public about these changes? Workload Issues 1. How will a change in Criminal Justice Branch Policy affect the provincial VAWIR Policy, in particular those VAWIR provisions that apply to other sectors of the criminal justice system such as police, Corrections, and Victim Services? For example, how will a different Crown approach to charging affect the current police approach to arrest? Will police continue to implement their pro-arrest policy and recommend charges whenever legal grounds exist? 2. What are the workload implications for police, Corrections, Court Services and Victim Services of a change in Criminal Justice Branch Policy related to charging? For example, if there is an expansion of the use of alternative measures rather than charging in VAWIR cases, will this have implications for Corrections workload? 3. What additional support systems and/or resources are necessary to assist Crown to successfully prosecute vawir cases? How might appropriate supports be developed for Crown and the victim in cases where the victim does not wish to testify or has significantly altered her version of events? Screening of Cases and Identification of Risk 1. How will the exercise of greater discretion by Crown in charging decisions effect current Crown and police practices related to risk assessment? For example, the Provincial VAWIR Policy currently contains a number of provisions designed to help Crown and police screen cases for risk of further violence and request detention of the defendant in those cases. In cases where the accused is held for a bail hearing, these risk factors can also be used to request protective conditions. With a change in charging policy, will these commonly recognized risk factors continue to be used by Crown in making charging decisions in VAWIR cases? If not, does this imply a greater role for police? 2. Fewer charges being laid by Crown counsel will likely result in fewer convictions. How can the long term risk posed by a particular abuser be tracked if he has not been charged? If more cases are being referred for alternative measures, how will compliance with the terms of the alternative measures program be tracked? Will responsibility for tracking be assigned to other sectors of the criminal justice e.g. police or the Protection Order Registry? Access Issues 1. Will the lack of a criminal charge in a reported spousal assault case result in the victim being disentitled to legal aid in subsequent civil proceedings including applications for restraining orders, custody orders and supervised access orders? 3 This is not meant to be a comprehensive list. It is intended to generate discussion and identification of additional issues. 5

6 2. How will the reductions in contracts for alternative measures programs (MPSSG Service Plan Summary) affect the ability of local communities to successfully deliver such programs to defendants who have been referred by Crown counsel under the revised policy? If these programs are now to be delivered by probation officers or other Corrections personnel, how will the closure of community probation offices 4 affect community capacity to deal with defendants referred for alternative measures? Prevention 1. What effect will a change in Crown s approach to charging have on the use of peace bonds and civil restraining orders in vawir cases? If the increased use of such orders is being proposed as an alternative to charging, what provision will be made for the effective enforcement of breaches? For example, will police or Crown be provided with the necessary resources to respond quickly and effectively in high-risk cases where a breach is reported? Consistency 1. Is the approach being proposed by BC s Criminal Justice Branch consistent with what is being recommended by the F/P/T Working Group mandated to review the status of mandatory charging and prosecutorial policies? 2. How will consistency in charging practices in vawir cases arising in different parts of the province be sustained with the allowance for greater Crown discretion that is now being proposed? 4 Pursuant to the MPSSG Service Plan Summary, community probation offices in the following communities will be closed: Hope, Kitimat, Parksvlle, Sidney and 100 Mile House. 6

7 Can Community Coordination For Women s Safety help? If your community or region could benefit from assistance related to coordination on this issue, please contact either Regional Coordinator If your community would like more information regarding policy related to this issue or assistance with promoting action at a provincial or federal level on this issue, please contact the Issues Analyst You may also wish to contact our Managing Partner for other information about the project. PROJECT STAFF Michelle Novakowski, Regional Coordinator ~ micheno@telus.net Gail Edinger, Regional Coordinator ~ rosebud@bcinternet.net Gisela Ruebsaat, Issues Analyst ~ gisela2@horizon.bc.ca Laura-Ashley Wright, Administrative Coordinator ext. 15 ~ ccws@endingviolence.org MANAGING PA RTNER BC Association of Specialized Victim Assistance and Counselling Programs