FRAMEWORK FOR ACTION AGAINST FAMILY VIOLENCE
2001 REVIEW

3. Courts

(a) The Framework Requirements for Courts

The Framework requires that all cases of a criminal nature, including peace bond applications and common assault charges, be heard by the Provincial Court and that Clerks of the Court give priority to family violence cases and peace bond applications to ensure that they are heard as soon as possible.⁽¹⁾

The Framework also provides that:

The Minister of Justice will make representation to the Chief Judge of the Provincial Court and the Chief Justice of the Supreme Court to emphasize the need for denunciation and deterrence in sentencing of perpetrators of family violence and to gain the support of the Judiciary for expeditious processing of these cases.⁽²⁾

(b) The 1999 Evaluation Report

(i) 1997 Consultation Sessions

In the May to June 1997 consultation sessions, court staff noted that Framework training had changed their attitudes and that cooperation among different components of the justice system had improved. Court administrators indicated that there was a heavy volume of peace bond applications, that many complainants needed help completing the application, and that there was some difficulty providing this service to complainants.⁽³⁾

Concern was expressed by Court staff about peace bonds being sought where there were grounds for the laying of a charge, about the number of frivolous peace bond applications, and the lack of understanding of the grounds for obtaining a peace bond (fear for safety).⁽⁴⁾

As well, a wide variation was reported in relation to the screening of peace bonds, with Justices of the Peace in some areas screening applications and rejecting those where grounds didn't exist, and Justices of the Peace in other areas being told to take all applications and to leave screening to the judge.⁽⁵⁾

Training for Justices of the Peace was seen as a means of eliminating inconsistencies.

Court staff indicated that victims were being informed of the community resources available either by Court staff or through referral to Victims' Services.⁽⁶⁾

With respect to hearing times, Court staff indicated that it was possible to set the first hearing within five to seven days, except in rural areas. Where a second hearing was required the delay could be a few months.⁽⁷⁾

(ii) 1996-1998 Data Analysis

The 1996-1998 statistical analysis, which the 1999 Department of Justice Monitoring Committee had available to it, showed that the average and median times elapsed from the first court appearance to the final outcome had declined significantly between the period April to August 1996 and the period February to June 1997, from an average of 178 days in April to August 1996 to an average of 141 days in February to June 1997.⁽⁸⁾

In terms of court outcomes, the data analysis for the period April 1996 to August 1998 assessed court outcomes for the period April 1, 1996 to March 31, 1997 by manually linking detailed incidents reported to police with data held on the Justice Oriented Information System (JOIS) for 459 cases.⁽⁹⁾

The data analysis suggested that following the implementation of the Framework, more charges, and more serious charges, were being laid.⁽¹⁰⁾

As well, the conviction rate of 65% following adoption of the Framework was significantly higher than the conviction rate of 57% prior to the adoption of the Framework, as documented in the 1995 Tracking Study.⁽¹¹⁾

Moreover, the 65% conviction rate in spousal/partner violence cases was comparable to the conviction rate for similar offences (60%) in adult provincial courts over a similar time frame.⁽¹²⁾

Of the 459 court cases looked at in the data analysis, there had been final dispositions in 437.⁽¹³⁾

There had been 285 cases in which there had been guilty findings.⁽¹⁴⁾

Sentencing information was available for 257 (98%) of them.⁽¹⁵⁾

The most common serious disposition in these cases was probation at 57%, followed by custody at 22%, with fines being the most serious disposition in 11% of the cases, conditional sentences in 8%, and other in 2%.⁽¹⁶⁾

When selected results of the 1996-1997 period were compared to the results of the 1995 Nova Scotia Family Violence Tracking Project, they showed that the rates of incarceration had declined, while the number of cases disposed of by fine had increased and rates of disposition by probation had remained about the same.⁽¹⁷⁾

With respect to probation, the use of conditions requiring spousal abuse program referral, a non-association clause, or substance abuse program referral, increased significantly following implementation of the Framework.⁽¹⁸⁾

Probation(19)	1995 Report	1996 Report
% of probationers with a spousal abuse program referral	35%	44%
% of probationers with a non-association clause	23%	53%
% of probationers with a substance abuse program referral	19%	47%

(iii) Recommendations of the 1999 Review Committee

The 1999 Department of Justice Monitoring Committee made very few recommendations in relation to courts. It did note that some key justice workers, including Justices of the Peace, had not received training during the initial phase of the Framework for Action and therefore recommended that they receive training to make them aware of their responsibilities and accountability.⁽²⁰⁾

As well, in light of the fact that many justice workers and community agency representatives who participated in the 1997 consultations had expressed frustration with the sentencing practices of the judiciary, the 1999 Evaluation Report recommended that the Minister of Justice bring the report to the attention of the Chief Justice of the Province and the Chief Judges of the Provincial and Family Courts.⁽²¹⁾

It also emphasized that "[m]onitoring of the justice system response to spousal/partner violence was seen as a critical component of the accountability framework for the initiative," but that an ongoing monitoring process had not been fully implemented by a number of components of the justice system including Courts and Registrars.⁽²²⁾

The 1999 Evaluation Report therefore "recommended that the Minister of Justice require each component of the criminal justice system to formally restate their commitment to the Framework for Action Against Family Violence and articulate means by which they will monitor adherence to the Framework policies."⁽²³⁾

(c) 2001 Review

(i) Lack of Statistical Information on Court Charges and Outcomes

Unfortunately, the current reviewers are at a disadvantage in comparison to the 1999 Department of Justice Monitoring Committee in so far as there has been no ongoing data collection or analysis since the data collection and analysis that was completed in August 1998. This means that we had no statistical information on charges laid, on time elapsed from incident to first appearance or from first appearance to final outcome, on conviction rates, or sentences imposed. Without this information it is very difficult to assess the accuracy of comments made by focus group participants on the progress of the justice system in relation to family violence. Many stakeholders who participated in the focus groups expressed concern about the absence of overall monitoring to track progress on family violence. Since family violence is a very serious ongoing problem, participants viewed the tracking of justice system performance as an important responsibility of government.

(ii) Peace Bonds

Once again, as in the consultations for the 1999 Evaluation Report, Court workers expressed concern about the volume of peace bond applications, about their ability to assist all complainants making applications, and about the use of peace bonds in situations where charges would be appropriate. Provincial Court Judges reiterated these concerns. Continuing inconsistencies in the practice of Justices of the Peace were noted, as was the concern that Justices of the Peace are in need of training.

(iii) Hearing Times

As in 1999, Court workers reported that the first appearance of the accused can usually occur in five days but that a subsequent appearance may take several months. On the one hand, we heard from some Court administrators, Crown prosecutors, and others that the courts are backlogged and that delays are inevitable, while other Court administrators and Crown prosecutors expressed the view that family violence cases could be expedited without adding any additional resources to the system, simply by making these cases a priority.

In the submission from the Public Prosecution Service prepared for the purpose of this review, the Public Prosecution Service noted that:

delay is a significant problem in the prosecution of spousal/partner violence cases, and is a major contributing factor in the failure of some of these types of prosecutions.⁽²⁴⁾

For the most part, spousal/partner violence cases are not "fast-tracked" through the justice system unless the accused has been remanded into custody pending the resolution of the case, which is not the norm.⁽²⁵⁾

The Public Prosecution Service also indicated that unless the accused has been detained in custody, it can be as much as six weeks from the time the incident occurs until the matter is first arraigned in court, and that as a result of adjournments (which are not uncommon), the setting down of trial may not occur until as much as five months after the incident occurred.⁽²⁶⁾

The Public Prosecution Service also identified the need for substantial additional resources to be directed toward the training of police and Crown prosecutors, to additional staff for Victims' Services, and to Courts, to legal aid and to alternative dispute resolution to enable the policy objectives of the Framework to be met.⁽²⁷⁾

In a meeting with Provincial Court Judges from around the province, it was clear that in some areas, domestic violence cases are given priority, while in other areas they are not. Some Provincial Court Judges "don't feel comfortable giving priority to domestic violence cases," while other judges leave it to the Court clerk to schedule cases on the basis that the Framework requires that such cases be given priority.

It was suggested by Victims' Services representatives that intimate partner abuse cases in rural areas might be scheduled together on the same day and that courts might co-ordinate their scheduling to facilitate the presence of Victims' Services staff to provide support for victims during court proceedings. Victims' Services staff in rural areas have large areas to cover and it is difficult for the few staff to provide adequate service to victims when several cases are being heard in different court houses in different parts of the larger area for which a Victims' Services office is responsible. Judges, however, felt that it would not be feasible to schedule intimate partner abuse cases together on the same day, given the fact that in rural areas only one day of court hearings are scheduled at any one courthouse at a time.

(iv) Sentencing

Grave concern was expressed by victims, Victims' Services staff, other victims' service agencies, police, some Crown prosecutors, and Corrections staff about the perceived leniency in sentencing and low rates of incarceration. It was noted that the most common sentencing outcome is probation on conditions including requirements to pursue spousal abuse programs, substance abuse programs, or anger management programs.

Concern was expressed by Victims' Services representatives, transition house representatives, and men's treatment program representatives that anger management treatment is not an appropriate form of treatment for abusive men. What is required is spousal abuse treatment, and spousal abuse treatment resources are inadequate to meet the need. Probation Services has cut funding for treatment programs and many men themselves cannot afford the cost of such programs, with the result that the conditions are being breached. As well, doubt was expressed as to the capacity of Corrections staff to monitor compliance with all the conditional sentences being given. Victims perceive that offenders are breaching the conditions with impunity and that judges are desensitized to the violence experienced by victims. Participants noted the need for judges to be made aware of the treatment services available in various areas of the province and of the type of treatment that is appropriate. The need for stronger penalties was stressed by many, while opportunities for diversion were suggested by some in limited circumstances. It was suggested that similar offences in non-domestic situations get stiffer sentences than in domestic violence situations, and that there is a useful analogy to be drawn between impaired driving offences and domestic violence.

In situations where an offender had already breached a court order, victims, police, Crown and Corrections staff believed it inappropriate to continue to place the offender on a further term of probation. They felt incarceration would send a more definitive message and hold the offender accountable for his actions.

(v) Initiatives in Other Jurisdictions: Sentencing

With respect to sentencing, there are some initiatives in other jurisdictions involving the use of risk assessment tools that might be worth considering for adoption in Nova Scotia. Some jurisdictions are exploring the use of risk assessment tools in an attempt to identify those abusers who pose a higher level of risk than others, so as to assess and manage risk to victims, to assist in decisions in relation to bail and to prioritize allocation of scarce probation supervision and treatment resources. As more and more offenders are charged with spousal abuse offences, more receive sentences of probation, such that this group of offenders comprises one of the largest groups on probation.

British Columbia is using a risk assessment and management tool developed by Randall Kropp at the British Columbia Institute of Family Violence. The risk assessment tool is used to determine the appropriateness of alternative measures, which are only permitted in "exceptional circumstances" under the British Columbia Violence Against Women in Relationships Policy. The Guidelines for Alternative Measures Contractors⁽²⁸⁾ are used by Crown Counsel in British Columbia to determine if cases are truly "exceptional." The screening criteria include history of violence, nature of the offence and severity of the injury, inappropriate use of power and control and alcohol or substance abuse.⁽²⁹⁾ It is interesting to note that participants in the focus groups conducted as part of the current review expressed concern about the inappropriateness in conditions of probation of referrals to anger management programs. The British Columbia guidelines provide that alternative measure plans "must never include conditions for behavioural intervention relating to the inappropriate use of power and control."⁽³⁰⁾

Referral to a relationship violence program is seen as appropriate.

In Alberta, Forensic Assessment Services does risk assessment for the Calgary Domestic Violence Court. As well, Alberta uses a "risk factoring tool" for decision-making at bail.

As part of Ontario's Domestic Violence Justice Strategy, police will be using a Domestic Violence Supplementary Report Form to collect data, which includes a risk assessment component.⁽³¹⁾

Information collected is critical and will be used at various stages throughout the justice process by police, Crowns, and others.

Statistical Data

In addition to the risk assessment tools developed and used in other provinces, Family Violence in Canada: A Statistical Profile 2000⁽³²⁾

provides very useful data which could assist in the identification of risk factors and in the development of risk assessment tools for use by police, Crown counsel, and Corrections. A review of this report suggests, for instance, that: emotional abuse is a significant factor and an important part of the overall context; that young women living in common-law relationships are particularly at risk; that alcoholism and substance abuse are important risk factors; that the point at which the victim leaves the abuser is the highest risk point; that pregnancy is a risk factor; that unemployment of the accused is a risk factor; and so on.

(d) Conclusions and Recommendations Regarding Courts

Despite the Framework requirements and the recommendations of the 1999 Evaluation Report, Justices of the Peace still have not received training regarding the Framework. Delays are still a significant problem in the prosecution of intimate partner violence cases, these cases are not being given priority in the justice system, and there continues to be widespread concern about the perceived leniency in sentencing, about low rates of incarceration, and about some inappropriate program referrals in conditions of probation. It is therefore recommended:

• that, in view of the important role played by Justices of the Peace, they receive training to make them aware of their responsibilities and accountability under the Framework;
• that the Minister of Justice bring this report to the attention of the Chief Justice of Nova Scotia, the Chief Justice of the Supreme Court, and the Chief Judge of the Provincial Court to solicit their support for the expeditious processing of domestic violence cases; to re-emphasize the need for denunciation and deterrence in sentencing of perpetrators of family violence; to make them aware of widespread concerns about the need for sensitization of the judiciary concerning the dynamics of domestic violence, and its impact on victims; and to alert them to the need for increased awareness of the types of treatment appropriate for perpetrators of domestic violence, as well as of the availability of such programs, or lack thereof, throughout the Province;
• that a risk assessment and management tool be developed for use by police, Crown Attorneys, and Corrections staff to identify those perpetrators who pose a higher level of risk than others, so as to assess and manage risk to victims, to assist in decisions in relation to bail and sentencing, and to prioritize allocation of scarce probation supervision and treatment resources; and
• that the Department of Justice implement the prototype information system it developed in 1996 to collect data on an ongoing basis to track the performance of the justice system in response to family violence cases in order to support sound executive decision-making and to measure the impact of new initiatives.

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1. ¹Supra note 10 at 4.

2. ²Supra note 10 at 4.

3. ³Supra note 14 at 31.

4. ⁴Supra note 14 at 31.

5. ⁵Supra note 14 at 32.

6. ⁶Supra note 14 at 32.

7. ⁷Supra note 14 at 32.

8. ⁸Supra note 14 at Appendix D, 27.

9. ⁹Supra note 14 at Appendix D, 19.

10. ¹⁰Supra note 14 at Appendix D, 19.

11. ¹¹Supra note 14 at 15 and Appendix D, 21.

12. ¹²Supra note 14 at Appendix D, 21.

13. ¹³Supra note 14 at Appendix D, 26.

14. ¹⁴Supra note 14 at Appendix D, 27.

15. ¹⁵Supra note 14 at Appendix D, 27.

16. ¹⁶Supra note 14 at Appendix D, 28.

17. ¹⁷Supra note 14 at 18.

18. ¹⁸Supra note 14 at 18.

19. ¹⁹Supra note 14 at 18.

20. ²⁰Supra note 14 at 40.

21. ²¹Supra note 14 at 41.

22. ²²Supra note 14 at 42.

23. ²³Supra note 14 at 42.

24. ²⁴Supra note 72 at 7.

25. ²⁵Supra note 72 at 7.

26. ²⁶Supra note 72 at 7.

27. ²⁷Supra note 72 at 9-10.

28. ²⁸Supra note 113.

29. ²⁹Supra note 113 at 3-5.

30. ³⁰Supra note 113 at 5.

31. For a further description of the risk assessment tool, questions asked, and rationale, refer to Ontario, Ministry of the Solicitor General, Policing Services Division, A Guide to Domestic Violence Supplementary Report Form (Toronto, Ontario: 2000).

32. ³²Statistics Canada, supra note 1.

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