Department of Justice     


2. Crown Attorneys

(a) The Framework Requirements for the Crown

The key elements of the 1995 Framework with respect to Crown Attorneys relate to orders with protective measures and Crown interaction with victims. The Framework indicates that applications for judicial interim release (bail) should include a request for a "no-contact" or other protective order in appropriate cases. When such an order is breached, a request should be made that bail be revoked and the accused detained in custody until trial. The Crown is directed to prosecute without delay all violations of court orders intended to ensure the safety of victims of family violence. With regard to victims, the Framework recommends that the Crown meet with victims prior to trial, as well as with other witnesses. Where and to whatever extent possible, victim testimony should be supported through the use of other evidence. The Crown also has an obligation under the Framework to refer victims to Victims' Services and/or a local transition house.

(b) March 1996 Ministerial Directive

The March 1996 Directive of the Minister of Justice reiterates the requirements for meeting with victims and requesting "no-contact" or other protective order in all appropriate cases on application for judicial interim release, and for prosecuting without delay all violations of such orders. The Directive also indicates that where sufficient evidence is available, the Crown shall prosecute all charges involving intimate partner violence, "regardless of the victim's/complainant's wishes, unless public interest considerations dictate otherwise."(1) The Directive requires that the Crown shall make every reasonable effort to get early court dates, and that the victim shall be informed by the Crown of the right to submit a victim impact statement to the court.

(c) The 1999 Evaluation Report

With regard to Crown implementation of specific elements of the Framework, the 1999 Evaluation Report found that there were variations across the province as to how victims are informed of conditions of release on bail, and regarding referrals of victims to Victims' Services and/or a local transition house. Crowns indicated that they made every effort to meet with victims, but sometimes this was not possible until the day of the trial. As well, there was variation in the way in which victims are informed of the right to submit a victim impact statement. Sometimes this information is communicated by the Crown, sometimes by the investigating officer at the request of the Crown, and sometimes by Victims' Services.

(d) 2001 Review

It is difficult to obtain comprehensive, up-to-date data on the prosecution of domestic violence cases in Nova Scotia. The Framework for Action states:

Each justice agency will be required to implement a structured audit mechanism. This system will monitor response to family violence incidents and will include mandatory reporting of reasons in cases where charges are not laid or subsequently withdrawn. Victim satisfaction with criminal justice intervention will form part of the audit process.(2)

In its 1999 Report, however, the Department of Justice Monitoring Committee noted that "an ongoing monitoring process has not been fully implemented by the Public Prosecution Service,"(3)

and the Public Prosecution Service stated in its submission to the current review that its internal audit of family violence cases is not yet complete: "Data-gathering is finished, however the methodology used has been criticized. Additionally, analysis and consultation with Crown attorneys have yet to be done."(4)

The issue of monitoring Crown performance was also raised in focus groups. It was suggested that those who comply with the Framework for Action should receive positive feedback, and Crowns should be held accountable for non-compliance with the Framework. The failure of the Public Prosecution Service to audit its adherence to the Framework and to track cases on an ongoing basis was seen by some Crowns as a significant failing in the implementation of the Framework for Action.

Despite this lack of data, focus group discussions offered useful insights into how Crowns themselves view the Framework for Action, and into how others, including victims, view the Crowns' implementation of the Framework. The Public Prosecution Service also provided further comment on the Framework in its written submission (Appendix G).

Focus group commentary regarding the prosecution of domestic violence cases tended to fall into four categories: analysis of the Framework's implementation and suggestions for continued improvement within the current Framework; discussion of the difficulty in balancing the need for a pro-prosecution policy with the need to respect victim autonomy; a weighing of the pros and cons of having some form of diversion program available for cases which fit within certain specified guidelines; and discussion of the need for or feasibility of a specialized domestic violence court for the prosecution of cases involving intimate partner violence. Each of these topics will be discussed in turn.

i. Implementation


It was clear from the focus groups that changes have occurred in prosecution practices since the inauguration of the Framework; however, it was also clear from the focus groups that adherence to the Framework policies is not completely consistent. There seems to be variation not just among individuals, but from one region to another. This sense of inconsistency came not just from the comments of other focus group participants, but from Crown Attorneys themselves. Some Crowns expressed strong support for the philosophy behind the Framework; however, some Crowns expressed doubts about the utility of a mandatory pro-prosecution approach, particularly in cases where a victim is adamantly opposed to testifying.

The Public Prosecution Service submission was on the whole quite supportive of the Framework for Action, stating: "[t]here has been a remarkable change for the better in only five years"; training has led to "better and more consistent handling of family violence cases;" and the Framework has helped foster distinct improvements in communication and cooperation among various parts of the justice system.(5)

However, the Public Prosecution Service submission also referred to "difficulties in reconciling government policy on the proper exercise of prosecutorial discretion with the government policy regarding domestic violence."(6)

This difficulty was seen as having led to inconsistencies in the prosecution of domestic violence cases, and the Public Prosecution Service stated that revisions are needed to its internal directive on implementing the Framework.(7)

With regard to Crown implementation of specific aspects of the Framework, a transition house representative stated in a focus group that while Crown handing of spousal violence is much improved, meetings with victims before trial are still very rushed. This representative also suggested that some Crowns still need to ask more indepth questions in court regarding the history of abuse in a particular case.

Victims also spoke of the difficulty in reaching the Crown and how important it was to them to meet with the Crown in advance of trial. Some victims felt that the Crown had been unprepared in their case, and questioned why additional available evidence (e.g. a 911 tape) was not used to secure conviction. Several victims commented on the Crown's failure during hearings to object to inappropriate and irrelevant comments made by defence counsel and the abuser (e.g. attacks on the victim's weight, lack of education, etc.).

A number of focus group participants, including several Crowns, spoke of the lengthy delays from the time a charge is laid until the matter is resolved in court; as one person commented, victims need to be able to get on with their lives, yet cannot do so with the trial pending for many months. The concern about delays had also been raised in the 1999 Evaluation Report, which found that the delay encountered in setting trial dates varied significantly from one region to another. In its submission to the present review, the Public Prosecution Service also spoke of significant delays, noting that spousal violence cases are only fast tracked if the accused is in custody, and that attempts by the accused to secure legal aid funding may also delay the process. According to the submission, a matter is often not set down for trial until 5 months after the incident, and once the plea is entered, there is a 3 to 12 month delay until the trial. Acquiring a pre-sentence report can cause up to 2 months' further delay. The Public Prosecution Service recommended that domestic violence cases be arraigned within 2 weeks of the incident and that the trial be held within 6 weeks. The Public Prosecution Service acknowledged in its submission that this change could only occur with increased resources in the justice system, including legal aid resources to allow for immediate representation.

Presumably sufficient resources and training could go a significant way towards resolving concerns about inconsistent application of the Framework, insufficient meeting time between Crowns and victims, inadequate case preparation, and delays. However, some critiques of the Framework for Action or similar policies intimate that, by their very nature, these policies raise difficult issues about balancing conflicting interests. Some critiques state explicitly that even perfect implementation of pro-charge, pro-prosecution policies cannot be a complete answer, given the nature of the criminal justice system, and paradoxes embedded within such policies. One possible answer to this analysis is to augment reliance on the criminal justice system with some form of diversion. The issue of diversion programs is discussed in the next section. This section focuses on some of the problems which arise with criminal prosecution of charges involving intimate partner violence.

In listing a variety of reasons why domestic violence cases may fail in the courts, the Public Prosecution Service surmised in its submission that the focus of the criminal justice system (state versus offender, with the victim simply in the position of a witness), may lead some victims to feel that their concerns regarding the impact of the violence are not sufficiently central to the trial. The same analysis was offered within at least one of the focus groups. One victims' support worker noted that victims who have not participated in the court preparation services offered by the Department of Justice Victims' Services may not understand that the role of Crown Attorneys in the criminal justice system is to represent the state, not the victim.

A key component of a pro-prosecution policy is that cases involving intimate partner violence are to be prosecuted whenever there is sufficient evidence,(8) regardless of the wishes of the victim. This is seen as protecting victims from being coerced into requesting a stay, and as reflecting the fact that domestic violence is a crime, affecting not only individual victims, but society as a whole. A pro-prosecution approach is found in the domestic violence policies of each of the Canadian jurisdictions, although perhaps not surprisingly, statistics would suggest variations in the implementation of the approach. The goal of ensuring that intimate partner violence is treated as a crime is a laudable goal, yet it may run counter to the wishes of some victims.

As an American article notes:

Mandatory arrest laws and no-drop prosecution policies have moved domestic violence criminal prosecutions to a position of rough parity with crimes perpetrated by non-intimates, and have greatly expanded the tools available to battered women seeking to escape abuse. The concept of treating family abuse "like any other crime" is finally within reach. But is this kind of equality really what is best for battered women?(9)
This paradox is probably most evident in discussions of variations of no-contact orders and of the appropriate response of Crowns and judges when victims in domestic violence cases make it clear that they do not wish the prosecution to proceed.

Variation of No-Contact Orders

The 1996 Directive of the Minister of Justice provides that, on applications for judicial interim release (bail), the Crown shall request a "no-contact" or other protective order in all appropriate cases. The issue of requests for variation is elaborated upon in the internal policy of the Public Prosecution Service:

Where a complainant/victim initiates a request to vary a "no contact" condition the Crown Attorney before agreeing to any variation should consider all the circumstances of the request and where, in the discretion of the Crown Attorney, it is necessary in the interest of justice the Crown Attorney should facilitate the placing of the undertaking or recognizance on the court docket where upon the complainant/victim should describe under oath all of the circumstances of the request.(10)

A variety of views were offered in focus groups regarding the issue of victim requests for variations of no-contact orders. Significant frustration was expressed by focus group participants, although for a variety of reasons: some saw such requests as evidence that a strict policy of attaching no-contact orders is too rigid, particularly in the case of couples who wish to continue their relationship. Others commented on the difficulty of distinguishing between those requests for variation which genuinely reflect the victim's wishes and those that are motivated by fear. Still others saw judges' or Crowns' acquiescence to such requests as proof that the philosophy behind the Framework for Acton is not yet fully accepted, and that the complexities of battered women's lives are still not fully understood.

Victim Reluctance to Proceed
Some victims may also express reluctance in having the criminal prosecution proceed. The Crown may be asked to drop the charges; where that request is not successful, some victims will refuse to attend the trial, or will give testimony which conflicts with earlier statements to the police, and exonerates the accused. These issues are discussed in turn.

"Stay rate" (or in American literature, "drop rate") is the term used to reflect statistics on the percentage of domestic violence charges which are stayed or withdrawn for want of prosecution, often because a victim has failed to appear or refused to testify.

In 1994, before the introduction of the Framework for Action, the stay rate in Nova Scotia was 34%.(11) Before the Framework, victim requests were sometimes sufficient to have charges stayed. Post-Framework, the "stay rate" fell to 27%.(12)

By way of comparison, it is relevant to note that in the specialized Family Violence Court in Winnipeg, stay rates initially dropped but then rose steadily to level off at 47%(13) and that Ontario's two domestic violence courts have stay rates of 22%.(14)
In the focus groups, at least one person suggested that in the last several years, more charges are being dropped in Nova Scotia for want of prosecution; however, without adequate statistics, it is impossible to know whether this is the case or not, or to know whether stay rates vary from one region of the province to another.

The policy of the Nova Scotia Public Prosecution Service, developed in 1996 to implement the Framework for Action, provides the following comment on this issue:

Wherever the Crown Attorney is satisfied that a reasonable chance of conviction exists in a spousal/partner violence case the Crown Attorney shall pursue the prosecution of charges unless public interest considerations dictate otherwise

The decision not to carry on with a prosecution is a responsibility of the Crown Attorney. Prior to coming to such a decision, the Crown Attorney should consult with the investigating police officer and wherever possible, should consult with the Regional Crown Attorney, the Associate Regional Crown Attorney, or his delegate for their region. A decision to discontinue a prosecution shall be reported to the Deputy Director of Public Prosecutions by the Crown Attorney. Where a decision is made not to continue with a prosecution for public interest considerations, those reasons will be stated in open Court unless it is inappropriate to do so. In all cases, the reasons for discontinuance will be recorded in the Crown file.(15)

The 1999 Evaluation Report found that where a domestic violence prosecution was discontinued, Crowns usually consulted with the investigating police officer and the victim, but rarely with the Regional Crown. Reasons given in the 1999 Evaluation Report for the withdrawal or dismissal of cases included that the victim refused to attend in court, recanted or lied on the stand during trial, evaded the service of a subpoena, moved out of the province or country, requested that the charge be withdrawn, or was very hostile towards police and Crown.(16)

The relationship between stay rates and an effective, appropriate justice system response to domestic violence has been the subject of some discussion in Canadian and American literature. There seems to be some evidence that "no-drop policies yield substantial positive results, including the reduction of homicides....No-drop policies also appear to lower recidivism and strengthen the message that intimate abuse will not be tolerated."(17)

However, some see rigid adherence to such policies as resulting in the disempowerment and further re-victimization of victims.(18)

On the other hand, some of the literature on intimate partner violence (for example, Epstein(19) ) and some focus group participants indicated that in many cases, a victim's unwillingness to proceed with the charge is significantly reduced where adequate victim supports are in place. This suggests that often it is inadequate implementation of a pro-prosecution policy, not the policy itself, which disempowers victims.(20)

When a charge is not stayed, victim reluctance to proceed within the criminal justice system may manifest itself in reluctance to testify, testimony that conflicts with previous statements to the police (often referred to as recantation), or failure to attend the trial. According to the 1999 Evaluation Report, Crown Attorneys stated that if the victim recants, it is almost a certainty that the accused will be acquitted.(21)

Even where KGB statements were available, the criteria for admission of such statements is onerous. This issue of victims who are reluctant to participate in the trial process raises questions of whether a warrant should be issued to ensure attendance at trial, or whether contempt proceedings should be initiated against a victim who refuses to attend, or to testify.

Domestic violence policies in other jurisdictions are not completely consistent on these issues; however, there appears to be a trend away from attempting to force a victim's participation through warrants or contempt proceedings. For instance, Ontario provides that Crown counsel are to attempt to convey to victims the possible ramifications of non-appearance, and to consult with the Regional Director before requesting a contempt citation for victims who refuse to testify. The British Columbia policy directs that Crowns should not apply for a material witness warrant to compel the victim of domestic violence to appear, unless circumstances are severe and there is some likelihood she will testify. Where a judge is considering contempt proceedings, for failure on the part of a victim to appear or testify, the Crown is to take the position that such proceedings are inappropriate, ineffective and likely to re-victimize, unless a child is at risk of harm. In Quebec, victims of domestic violence are not to be compelled to testify by summons unless there are exceptional circumstances. Applications for an arrest warrant are not to be pursued. Saskatchewan's policy discourages contempt proceedings against a victim who does not appear or who refuses to testify. Federal policies govern the criminal justice system in the Northwest Territories, Nunuvut, and the Yukon Territory and apply to the RCMP and federal Crown prosecutors. Under these policies, Crowns are not to move for criminal sanctions against a victim of domestic violence without prior approval of the Regional Director.

In Nova Scotia, the Public Prosecution Service policy sets out the procedure to be followed if a victim recants, or fails to appear in court in response to a subpoena:

Where a complainant/victim fails to appear in Court in response to a subpoena, the Crown Attorney should take such steps, as in the opinion of the Crown Attorney, are necessary to ensure that the Crown retains control and appears to retain control over the prosecution. It is of paramount importance that no one, (in particular neither the complainant\victim nor the accused) perceives that the criminal process can be frustrated by the complainant\victim failing to respond to the subpoena. Where the complainant\victim fails to respond to a subpoena, the Crown Attorney should consider the following options:

(a) requesting an adjournment;

(b) requesting a Warrant and, where appropriate, requesting that it be held for sufficient time to determine the reason the complainant\victim failed to appear. Obtaining a Warrant is not intended to punish the complainant\victim for being reluctant to testify, but rather as a means of keeping the prosecution alive in the hope of protecting the complainant\victim in the short and long terms;

(c) requesting the authority to enter a stay of proceedings;

(d) offering no evidence. Since the decision to offer no evidence amounts to a discontinuation of the prosecution, this decision should be made in accordance with [other policy principles].(24)

The 1999 Evaluation Report found that in most instances where a victim does not appear when subpoenaed, Crowns ask that a warrant be issued. However, the Public Prosecution Service noted in its submission that a reluctant witness who is forced to testify is likely to perceive the Crown as an enemy and will become even less willing to co-operate.

While there was discussion in a number of focus groups of the fact that some victims will be reluctant to testify, or may change their testimony from the statement given to the police, it was also reiterated that many women are relieved that the pro-charge, pro-prosecution framework lifts the onus from them, and that many women do not refuse to testify, and do not lie on the stand. Furthermore, a victim's ability to take part in the criminal justice process was seen as closely related to the degree of support that was offered to her during that process. Apparently there are very few recantations when court accompaniment is available.

(e) Conclusions and Recommendations Regarding Crown Attorneys

One theme runs throughout the results of consultations by the 1999 Department of Justice Monitoring Committee and the focus group discussions in the current review: that there has been inconsistent acceptance among Crowns of the philosophy underlying the Framework for Action. While there may be difficulties inherent in carrying out a pro-prosecution policy in the context of intimate partner violence, some Crowns see the Framework as representing the most appropriate response to such violence, and characterize the difficulties as stemming largely from the complexities of intimate partner violence itself, inadequate implementation of the Framework (for instance, police failing to gather available independent evidence) or inadequate resources (for instance lack of court orientation and accompaniment for victims). Other Crowns see difficulties in implementing the Framework as highlighting flaws inherent in any pro-prosecution policy, and as revealing the need for greater flexibility in such policies.

It is recommended that the primary justice system response to intimate partner violence should be to treat it for what it is: criminal activity deserving of sanctions from the criminal justice system. Furthermore, it is recognized that simply allowing wishes expressed by the victim to dictate whether or not a particular charge proceeds would be a retrograde step, providing perpetrators with an opportunity to coerce victims into asking for stays. Thus, even if some flexibility might be introduced (as discussed below in the portion on diversion), a pro-charge, pro-prosecution philosophy should remain the cornerstone of the Framework. The goal must then be to translate this philosophy into securing convictions where a crime has occurred, and enhancing victim satisfaction with the process.

It is recommended therefore that ongoing training be implemented to make certain that all Crowns(25)

  • understand the dynamics of intimate partner violence and the reasoning behind a pro-prosecution policy;
  • give priority to cases involving intimate partner violence, in terms of asking for early court dates;
  • become versed in using independent evidence (where available) so as to reduce reliance on victim testimony;
  • recognize the importance of ascertaining from victims, and, as far as possible, introducing as evidence in court, information regarding past incidents of violence. It is hoped that such evidence, in conjunction with statistical information on the extent to which victims generally experience repeated acts of violence before calling the police, might assist the court in recognizing that a first charge rarely represents an isolated incident;
  • follow Public Prosecution guidelines intended to reduce the stay rate of charges involving intimate partner violence; and
  • appreciate the importance of close liaison with Victims' Services.

It is also recommended that sufficient resources be allocated to the Public Prosecution Service to allow Crowns to carry out the steps required for effective prosecution of charges involving intimate partner violence.

It is furthermore recommended with regard to implementing the current Framework that the Public Prosecution Service complete its internal audit of intimate partner violence files and put in place a system for on-going monitoring, to ensure that Crown treatment of such files is in keeping with Framework policies.

(f) Diversion

During the present review, the issue of whether the criminal justice system should offer a diversion option for certain carefully screened domestic violence cases arose in the interjurisdictional comparison, the literature review, and several of the focus group meetings.

References were also made during the focus groups to "restorative justice,"and "alternative dispute mechanisms." For the purposes of this review, the term "diversion" will be used to mean a post-charge, pre-trial early intervention option with a focus on counselling and treatment for the offender.(26)

At that stage in the process, Crown Attorneys would have substantial involvement in any decision regarding diversion; therefore, it seems appropriate to include the issue in this portion of the review.

In most Canadian jurisdictions, the justice policy on domestic abuse explicitly excludes such cases from consideration for diversion; however, this is not true of every jurisdiction.(27)

(i) Ontario

Post charge "diversion" is available in parts of Ontario(28)

through a component of the Ontario Domestic Violence Courts initiative. This model offers an early intervention stream for offenders who have no prior convictions for domestic violence, did not use a weapon in the commission of the offence, and caused no significant harm to the victim.

The early intervention stream, often used in situations where the victim and offender wish to reconcile, permits the accused to plead guilty and be ordered, as a condition of bail, to attend a Partner Assault Response (PAR) program. Screening is done by a specialized Crown. The Victim Witness Assistance Program consults with the victim and provides information and referrals to community resources. Upon completion by the offender, the PAR program provides a report to the Crown which, if satisfactory, can be considered as a mitigating factor in sentencing. The Crown usually recommends a conditional discharge.(29)

In the Ontario model, completion rates for early intervention treatment were higher than in post- sentence court-ordered programs, and few in the former group were charged with re-offending while in the program.(30)

If the accused does not successfully complete the program, he has breached bail conditions and can be processed via the prosecution stream.

(ii) Yukon Territory

The Yukon Territory offers a "Domestic Violence Treatment Option" (DVTO) sitting of the Territorial Court which is closely tied with the Assaultive Husbands Program individual and group counselling for perpetrators.(31)

A half day of court a week is set aside to expedite domestic violence cases during which an accused charged with spousal assault has the option to plead guilty, agree to treatment through the DVTO, and return to court for sentencing following completion. Once an offender applies for the DVTO, the case is adjourned for 28 days during which an assessment is made by the Family Violence Prevention Unit. The Unit reports back to the court on offender eligibility. Probation Services also completes a report similar to a pre-sentence report into which Victims' Services, the Crown, and defence counsel provide input. Repeat offenders may apply for the DVTO and although most offences are expected to be common assault, more serious offences are not automatically excluded. If ineligible, the offender returns to the regular court process.

The Family Violence Prevention Unit in the Yukon Territory runs the 10 week treatment program and reports back to court at regular intervals on the offender's participation in the program, including compliance and behaviour. Victim input is included in the progress reporting, usually every three months. Sentencing is imposed once the treatment plan is completed (usually six to nine months later).(32)

The Yukon Territory's early intervention stream is intended to encourage more disclosures of domestic violence, to hold offenders accountable in a meaningful way, to reduce the high "collapse rate" of domestic violence cases, to provide for early intervention and offer a treatment option to offenders under close supervision of the court and treatment professionals, and to provide protection and support for victims. The key elements of the DVTO are involvement and direction from a steering committee; fast tracking of cases; as far as possible, continuity of Crown counsel, defence counsel, and judges, in order to provide consistency; complainant support from the Victim/Witness Assistance Program and the Family Violence Prevention Unit; court review at regular intervals of progress made by offenders; and court appearances scheduled at the same time each week to facilitate attendance by those involved in the assessment, treatment, and supervision of offenders.

(iii) Northwest Territories

In the Northwest Territories, diversion can only be considered for domestic violence cases in exceptional circumstances where the RCMP, local justice committee, and Justice Canada agree. The Northwest Territories' program is somewhat unusual in that the entry into the diversion program is pre-charge rather than post-charge.

(iv) American Jurisdictions

Post-arrest, pre-trial diversion, where court-ordered counselling for abusers is initiated after criminal charges have been laid, is used more frequently in the United States than in Canada. In at least some of the models, charges are dropped on successful completion of treatment.

In the Pittsburgh Domestic Violence Court, the judge may defer a decision up to 90 days to allow the offender time to complete a batterers' program as a condition of bond. If the program is completed, charges are reduced to summary misdemeanor or withdrawn. Non-compliance is a breach of the bond condition and may result in jail, a hearing on the original charges, or permission to re-enter the program.(33)

In Denver, Colorado, first-time offenders, screened for eligibility, are offered the option of diversion to treatment. If they plead guilty, judgment is deferred for a year.(34)

The City of San Diego has a program of court-ordered counselling on first misdemeanor offences. Upon pleading guilty, abusers receive three year probation sentences and are ordered to participate in one of 16 certified batterers' counselling programs for a year at their own expense. When individuals complete the program, the recidivism rate is less than 15%.(35)

(v) Discussion of Diversion

Focus Groups

When the issue of diversion was discussed in focus groups, perspectives varied from those who see diversion as offering needed flexibility in the province's response to intimate partner violence, to those who fear it will undermine the intent and impact of the Framework. While some participants assumed that victims' support workers and transition house workers would be opposed to any consideration of diversion (and this assumption might be accurate in some cases), in one focus group, those involved with victims' support/transition houses agreed that it would be worthwhile exploring diversion, not in place of, but in addition to, the Framework.

The chief arguments offered for and against such an approach were:


  • diversion programs should not be contemplated until the Framework has been fully and consistently implemented, which is not yet the case. Concerns were expressed that the necessary philosophical or cultural shift in practice had not taken place, particularly at the Public Prosecutions level, to ensure that the objectives of the Framework policy are consistently met, and until then, diversion would simply allow a way out for those who were not committed to the present policy. It was felt that introducing diversion now would be a "retrograde step," likely to undermine the Framework;
  • with some approaches to diversion, a criminal charge may be stayed or dropped on successful completion of the program. Some were concerned that the lack of a criminal conviction would frustrate efforts to identify repeat offenders and ensure public safety;
  • the fear was expressed that victims would be pressured to consent to diversion, inappropriately placing the onus on victims again and defeating the purpose of the mandatory charging policy;
  • diversion would seem to minimize the extent of violence that is happening;
  • diversion could not work unless there were adequate resources, and also adequate monitoring of how the discretion to refer cases to diversion was actually being used. Given that there are insufficient resources to support the present response to domestic violence, and given that the Public Prosecution Service has not completed its own internal audit, doubts were expressed as to whether either of these factors, necessary for success, would actually exist; and
  • diversion programs might have difficulty responding appropriately to the underlying power imbalances inherent in abusive relationships.

  • a "one size fits all" approach is not feasible for a problem as complex and multi-faceted as spousal violence. While the pro-charge, pro-prosecution policy should still remain the mainstay of the province's response to domestic violence, flexibility is needed to respond effectively to those family situations which are not likely to be served well by the criminal justice system;
  • the criminal justice system is an unwieldy instrument to address a social problem that could be better solved outside the court;
  • processing a charge through the criminal justice system can take a long time. Victims need to be able to get on with their lives, and it is preferable that the offender admit responsibility early on, and have immediate access to counselling;
  • the fact that Crowns have no discretion to stay charges involving more minor incidents, or incidents where a victim truly does not wish to proceed has resulted in a desensitization of Judges;
  • a diversion program might alleviate some of the pressure on victims who do not wish to proceed through the criminal justice system, and because the decision of whether or not to refer a case to diversion would rest with the Crown, the onus would still be lifted from victims;
  • in this setting, more accuseds might be persuaded to accept responsibility for their actions; and
  • women who do not want to go through the criminal justice system may be unwilling to call the police for protection; such women might be more willing to do so, if a diversion option existed.
Public Prosecution Service Submission

While recognizing that the use of the criminal law is an "essential first step" in responding to family violence, the Public Prosecution Service stated in its written submission that some Crowns would

like to see a carefully controlled trial of selected family violence cases in an alternative resolution program similar to the restorative justice program....That would require a step away from the pro-charge, pro-prosecution policy for every case to a more flexible policy which would emphasize the importance of repairing the harm done to people who choose to continue their relationship in the aftermath of family violence.(36) Such an approach would, the submission suggests, allow for a faster, more effective response, and increase victim satisfaction with the justice system. Entry into the diversion program as proposed in the Public Prosecution Service submission would occur only post-charge, and the decision would lie with the Crown. Furthermore, the administrator of the diversion program could ask a Crown to reconsider a referral. Diversion would be considered only where the victim had suffered no bodily harm, and where the accused accepted responsibility for his action. As well, an accused would be eligible only if the following criteria were met: no criminal conviction of any kind in the past 5 years; no prior convictions or discharges for offences involving violence or threats; no outstanding criminal charges; and no prior referrals to the domestic violence diversion program. Furthermore, a referral would require that the victim and accused, after separate counselling, agreed to diversion, and that, in the opinion of the Crown, the referral would be consistent with the protection of society, there was sufficient evidence for prosecution, and the prosecution was not barred by law.

It was recognized in the Public Prosecution Service submission that such an approach would require an ongoing training commitment from Public Prosecution Service to ensure that all Crown Attorneys are well informed of the dynamics of domestic abuse cases, and that the diversion program would need adequate staffing within a well-structured organization.(37)

(g) Conclusions and Recommendations Regarding Diversion

In several Canadian jurisdictions, domestic violence cases which meet certain criteria may be referred to a diversion program. Other provinces, including Nova Scotia, explicitly exclude cases involving intimate partner violence from those eligible to be considered for diversion or "alternate measures." Some of the recent literature suggests that a pro-prosecution policy, amplified by diversion in certain limited circumstances, may provide a partial answer to the dilemma of attempting to treat intimate partner violence like the crime it is, while at the same time affording some recognition of autonomy for victims who do not wish to follow through with the criminal justice process. This issue also arose in a number of the focus groups, with some participants strongly advocating adding a diversion component to the Framework, others as adamantly opposed to such a move, and others seeing both sides.

It seems that there are risks either way. Handling some cases of intimate partner violence other than through the standard criminal justice process allows for the possibility that victims will be increasingly disempowered. It could become too easy for the government to avoid allocating the resources needed for full implementation of the Framework, or for Crowns who have an overload of cases, or who have never fully "bought into" the Framework philosophy, to shunt files into the diversion process at the least hint of a victim's reluctance to proceed. Further, because there has never been complete implementation of the Framework, in terms of on-going training for justice personnel or sufficient victim support, it is arguable that we do not actually know the optimal results that could be gained from a pro-charge, pro-prosecution policy supported by extensive victims' services.

On the other hand, there does seem to be some logic to the argument that, given the complexities of intimate partner violence and the various choices that victims may wish to make, it is unlikely that any one policy could serve the needs of all victims. Thus, it may be that a rigid adherence to a pro-prosecution policy risks disempowering the victim in instances where a victim has come to an informed, voluntary conclusion that prosecution will not assist her in achieving the goals she has identified for herself. It is recommended therefore that the Department of Justice initiate a diversion pilot project for intimate partner violence, at one site in the province. Such diversion should only be available after a charge has been laid.(38) It is further recommended that the decision to refer an offender to diversion should be made by the Crown, in conjunction with the officer who laid the charge, and "[o]nce a referral has been made the head administrator of the program should be able to request that the Public Prosecution Service reconsider a recommendation."(39) Those who entered the diversion program would enter into an agreement that presumably would include terms such as a promise to refrain from further violence and an agreement to undergo counselling relevant to intimate partner violence, as well as other counselling (such as for substance abuse) as needed in individual cases. Failure to adhere to the diversion agreement would result in the case being returned to the standard prosecution stream. If this model were followed, a decision would still need to be made as to whether or not successful compliance with the diversion agreement would still lead to a criminal record (with the compliance taken into account in sentencing).

In order for a diversion pilot project to avoid undermining what gains have been achieved thus far through the Framework, it is recommended that such an initiative should be undertaken in accordance with the following guidelines:

  • introduction of a pilot project would be in addition to, rather than in place of, a firm government commitment to allocating sufficient funding to allow effective implementation of the Framework;
  • the site for the pilot project should be chosen carefully. Diversion should only be initiated in a region where there is already strong support for the pro-charge, pro-prosecution philosophy of the Framework, and where it seems likely that justice personnel and the community could work closely together in providing appropriate treatment and monitoring for the perpetrator and support for the victim. Acceptance of the Framework philosophy seems to vary from region to region. While Cape Breton is not the only region to demonstrate firm commitment, it seems to be unique in its combination of commitment to the Framework and superb relationships among those who work with issues relating to intimate partner violence, whether within the justice system or within the community. It is recommended therefore that Cape Breton would be the logical place to introduce a pilot project on diversion;
  • the pilot project would have to receive sufficient funding for an adequate organizational structure, and enough counselling/treatment programs would have to be in place for referral of perpetrators going through diversion;
  • the pilot project would have to be monitored, and measured against stated goals, in order to determine whether the use of diversion should be expanded to other sites;
  • critical aspects of developing a pilot project would include developing appropriate criteria for assessing which cases might be considered for diversion, training Crowns involved with the project in the consistent application of those criteria, and training victims' support workers to assist victims in making voluntary and informed choices between diversion and the standard prosecution of offences. In developing criteria, close attention should be paid to those jurisdictions that are already using diversion in the context of intimate partner violence, and any evidence from those jurisdictions as to the appropriateness of the criteria in place;

  • at a minimum, the following criteria should be met before a case involving intimate partner violence would be considered for diversion:(40) the offender has no prior conviction or discharges for offences involving violence or threats; no criminal convictions of any kind for the proceeding 5 years; no outstanding criminal charges; and no previous referrals to diversion for charges involving intimate partner violence; no bodily harm was inflicted on the victim; the victim, after independent counselling(41), agrees to the use of diversion; and the offender takes responsibility for his actions, has consented to the use of diversion, and is cooperative; and
  • an on-going Public Prosecution Service commitment to training would be required, to ensure that all Crown Attorneys are well aware of the goals and philosophy of the Framework for Action and well aware of the dynamics of intimate partner violence.
(h) Specialized Domestic Violence Courts

In a number of focus groups, the issue of specialized domestic courts was raised in discussions of the prosecuting of charges involving intimate partner violence. Several jurisdictions have established or are beginning to establish specialized domestic violence courts, usually with designated Crowns, Judges, and sometimes, victims' support staff. The interjurisdictional comparison found significant support for specialized courts, with the proviso that sufficient resources must be dedicated to them in order for the courts to work.

(i) Winnipeg, Manitoba(42)

The Winnipeg Family Violence Court, the first of its kind in Canada, came into existence in September of 1990, to handle spousal, child and elder abuse cases. Between 1990 and 1997, 23,000 cases were dealt with by the Court, of which 89% were spousal abuse, 10% child, and 1% elder abuse. The number of spousal abuse cases rose dramatically in its first four years of operation, to level off thereafter.

The Winnipeg model is based on five components: a "Zero Tolerance" pro-arrest policy; a women's advocacy and child victim witness program for victims of family violence; a specialized prosecutorial unit of 11 Crowns; specially designated court rooms and dockets for intake, screening court and trials; and a special probation unit to deliver court-mandated treatment programs.

The goals of the specialized court are to expedite court processing; increase victim cooperation and reduce case attrition; and provide appropriate sentencing that would protect victims through appropriate sentencing, such as treatment for abusers and offender monitoring through probation supervision. There is evidence to suggest the Court has had some success with two of these goals. Regarding sentencing, the number of cases resulting in probation supervision tripled and those resulting in jail sentences doubled, while fines and conditional sentences declined in the first two years of operation. Court-mandated treatment (for abusive behaviour) was a condition for about 25% of all persons sentenced in the Court. Court processing time averaged three months despite significant increases in case volumes. Case attrition rates declined initially, then rose to level off at about 47% after four years of operation.(43) (ii) Ontario(44) In 1997, Ontario introduced several specialized courts for domestic violence cases as pilot projects in Toronto.(45) There is now a plan to expand specialization throughout all court jurisdictions in Ontario.

The objectives of the Ontario model are to establish a coordinated prosecution which emphasizes the gathering of solid evidence to support a vigorous prosecution and reduce reliance on victim testimony (e.g. 911 tapes, medical reports, witness testimony, audio or video-taped victim statements), provide better support to victims throughout the criminal justice process, and

hold offenders accountable for their behaviour if they are found guilty.

As of February 2000, approximately 4500 cases had been processed through either these specialized courts or the early intervention diversion model described above-76% in the Prosecution sites and 24% in the Early Intervention sites-with the result that 22% of the cases were withdrawn and 69 % resulted in guilty disposition (72% at the early intervention sites and 68% at the prosecution sites).

Following the pilot project in Toronto, specialization is now being expanded throughout Ontario, with the exact mode of delivery depending on the size of the community. In large sites with designated staff, the courts will have:

  • active Domestic Violence Court Advisory Committees;
  • cultural interpreters;
  • police services to develop and maintain procedures for undertaking and managing investigations into domestic violence that address enhanced investigative procedures;
  • designated Victim/Witness Assistance Program staff specially trained to give support and information to victims;
  • designated Crowns specially trained to prosecute to produce consistency and continuity;
  • specialized processes for dealing with domestic violence cases to ensure effective coordination of resources;
  • specialized counselling programs for abusive partners and for victims; and
  • specialized processing to expedite cases.
In medium and small rural sites, the ingredients will be similar but fewer. Furthermore, in these areas, rather than having staff designated solely for a domestic violence court, specially trained staff will be available.

(iii) Calgary

Calgary has recently implemented a domestic violence court on a five year pilot basis. The core elements, as described in the court proposal, are as follows:

  • expansion of the specialized Domestic Conflict Unit within Calgary Police (with emphasis on collecting evidence beyond the victim's testimony to enhance the quality of investigations);
  • creation of a specialized unit within the Crown Prosecutor's Office (which determines whether a charge proceeds and which will not reduce a charge unless "the ends of justice are served thereby");
  • Duty Counsel available to the accused through Legal Aid to expedite proceedings and participate in pre-court conferences on behalf of the accused;
  • Legal Aid advice available to the victim through a staff lawyer, within 24-48 hours of an incident. This includes advice on divorce, custody, and matrimonial property matters as well;
  • a specialized first appearance docket court that will expedite family violence cases with specialized prosecutors and Judges;
  • new victims' support services called Victim Advocates to initiate contact with a victim immediately following the arrest of the accused and offer a continuum of support services throughout the criminal process, including information about case status and notification of changes, court accompaniment, communication of the victim's perspective in a pre-court conference with the Justice Coordination Unit, education of victims about risk management and safety planning, and referral of victims to community resources;
  • a specialized Community Corrections Probation Unit that focuses on victim safety and offender accountability, prepares Pre-sentence Reports, reports breaches of probation terms to the court, reviews the court docket every morning to check for offenders already on probation, monitors any accused released on pre-trial conditions, and provides the court with a risk assessment regarding the potential for future violence by the offender. Although designated probation officers were originally envisioned, this has not materialized;
  • greater focus on early access to and increased availability of court-ordered treatment programs for the offender that are culturally appropriate, accessible, and affordable. All programs must place victim safety as the priority and meet established professional standards (there are four agencies in the community that provide individual and group counselling for abusive men, their partners, and children). Referral to treatment can occur within 48 hours on an admission of guilt by the offender;
  • individual and group counselling services for children and adolescents who witness family violence or who are aggressive themselves;
  • coordinating protocols (with 52 agencies);
  • coordination by the Calgary Justice Working Committee;
  • cross-sector training to ensure implementation and compliance;
  • thorough evaluation of the court;
  • child welfare involvement: referrals are made in every case of domestic violence with children; and
  • forensic psychiatry to help identify any accused who is mentally ill.
A unique feature of the Calgary Court is a pre-court conference chaired by Crown counsel which brings together the Crown, defence counsel, probation, Victim's Advocate, and police to share and coordinate relevant information to be brought before the court. Frequently, cases can be resolved, a sentencing plan can be agreed upon, and a joint submission made to the court by Crown and defence counsel. Risk assessments will be completed by police and community agencies and made available to the court to assist in determining the release of an accused and conditions. Information concerning prior breaches of court orders including judicial interim release are made available to the court. Many cases are resolved on the day of the conference. The offender, upon admission of guilt, can be "fast tracked" to a treatment program within 48 hours.

(iv) Other Canadian Jurisdictions

At least two other Canadian jurisdictions are also moving toward some degree of specialization. The Yukon Territory, as part of its Domestic Violence Treatment Option, discussed above in the section on Diversion, sets aside a half day each week to hear domestic violence cases on an expedited basis. Apparently, a municipal court in Montreal also provides specialized hearings of intimate partner violence cases; however, little information on that court was obtained during the interjurisdictional review.

(v) San Diego Domestic Violence Policy/Protocol

The County of San Diego has established specialized units in the City Attorney's office, the District Attorney's office, and the County Probation Department in an effort to coordinate and improve response to victims of domestic violence throughout the County. The units are a product of the San Diego Domestic Violence Task Force, formed in 1989, now the Domestic Violence Council, a body comprised of about 40 agencies.

As noted above, San Diego has a diversion program of court-ordered counselling, for offenders who plead guilty on a first misdemeanor offence involving domestic violence. In those cases where the accused does not plead guilty, the decision to prosecute is made on the basis of evidence available, independent of victim wishes. Victim Services provides support and notification to victims.

The Domestic Violence Unit within the City Attorney's Office, to which 90% of all criminal domestic violence matters are referred, has a prosecution protocol which includes "vertical prosecution": the assignment of a case to one attorney from screening to completion, for continuity. An Automated Case Tracking System tracks cases once they enter the office and domestic violence cases are visibly marked and numbered.

(vi) Focus Group Discussion

Although the idea of specialized domestic violence courts, with specialized prosecutors, was not a major topic of discussion within focus group meetings, it was raised by a number of participants. Where the issue was discussed, there seemed to be general agreement that specialized units could work in larger centres, but would be impractical in smaller communities or rural areas. In its written submission, the Public Prosecution Service recommends that resources should be directed toward "[c]ourts exclusively dedicated to dealing with domestic violence cases."(46)

(g) Conclusions and Recommendations Regarding Specialized Courts

As noted above, a number of jurisdictions in Canada and the United States now have specialized courts for cases involving intimate partner violence. While the details of such courts differ, it seems that most involve the use of specially trained prosecutors and judges, and a victims' support component.

Even in communities where a fully specialized court with separate staff may not be possible, several jurisdictions are attempting to develop feasible options. For instance, in Ontario, domestic violence courts are being established in larger municipalities, while in smaller communities the focus will be on providing specialized training for designated Crowns and victims' support workers, and a specialized process to expedite cases. As noted above, in the Yukon Territory, a half day of court each week is set aside to deal with intimate partner violence cases on an expedited basis.

The Women Abuse Council of Toronto conducted a court watch study (1999) and reported that specialized courts are more successful in prosecuting domestic violence cases; have a lower rate of withdrawals, dismissals, and peace bonds; result in a higher rate of guilty dispositions (both guilty pleas and verdicts in court); and have a higher rate of victims appearing in court.(47) According to the 1999 court watch study, specialized domestic courts are more effective than the standard criminal justice court in the prosecution of intimate partner violence.

Given the extent to which focus group discussion stressed the need for ongoing training, and consistency of approach, in order to ensure effective implementation of the Framework, it seems logical that a specialized court, with specially trained Crowns, judges and victims' support workers, would be better able to provide continuity and knowledgeable application of Framework policies. On the other hand, proposals for specialized courts must take account of differences between larger urban centres and small towns or rural areas. Presumably a fully specialized court could be more easily introduced where court sits each day, there are a number of Crowns and judges involved, and a higher number of cases involving intimate partner violence, than in an area where court sits less frequently and fewer personnel are involved.

It is therefore recommend that the Department of Justice undertake detailed study of the organization and operation of specialized domestic violence courts in other jurisdictions and then initiate a specialized domestic violence court as a pilot project in the Halifax Regional Municipality. This pilot project should be carefully monitored, and its performance measured against stated goals such as expediting the court process; increasing victim cooperation and reducing stay rates; prosecuting charges involving intimate partner more effectively; providing better support for victims throughout the process; and assessing appropriate sentences. If the pilot project shows that a specialized court is better able to meet these goals than the present system, it is recommended that the Department of Justice expand such specialization to those sites throughout the province where the incidence of intimate partner violence cases, and the numbers of court personnel would make this feasible.

It is also recommended that for communities too small to warrant a fully specialized court, the Department of Justice implement measures to provide some degree of specialization within the current system. Such measures might include setting aside some court time weekly to provide for expedited hearings, and providing designated Crowns and victims' support workers with more extensive training. It is recommended that, in designing specialization measures, the Department of Justice should seek guidance as to what does or does not work from other jurisdictions which are already experimenting in this area.

As is the case with the present court system, it seems likely that a major factor in the success of specialized courts or specialized processes would be the provision of adequate victim support. Without such services, attempts at specialization could well founder.

1. Supra note 72, Appendix.

2. Supra note 10 at 7.

3. Supra note 14 at 42.

4. Supra note 72 at 2.

5. Supra note 72 at 1.

6. Supra note 72 at 2.

7. Supra note 72 at 9.

8. During the focus groups, it became clear that the pro-charge aspect of the policy was not interpreted consistently by police officers: some understood that charges were to be laid whenever there was reasonable and probable grounds to do so; others seemed to believe that the Framework required that a charge be laid whenever there was an allegation of domestic violence, without any assessment of reasonable and probable grounds. Those who took the latter approach commented that they saw discretion as existing at the Crown level; therefore the police should always charge and then leave it for the Crown to "sort out." If charges are laid without reasonable and probable grounds, or without sufficient gathering of evidence, Crowns may be forced, after an assessment of the case, to conclude that a conviction is unlikely, and therefore stay or drop the charge.

9. 9Epstein, supra note 24 at 16.

10. Supra note 72, Appendix.

11. Tracking Project, supra note 11.The stay rate takes on even greater significance when it is remembered that the same Report found that charges were laid in only 44% of domestic violence calls to the police (a figure which corresponds with the numbers of victims who asked that a charge be laid).

12. Supra note 14.

13. 13The stay rate has increased dramatically from 22% in the first year to 47% in 1997 which Ursel attributes to (1) the shift in discretion from police to Crowns in determining whether a case proceeds and to (2) Crown policy that, while emphasizing vigorous prosecution, permits the Crown not to proceed "at the expense of the victim" (Statistics Canada, supra note 1 at 46). Ursel argues that "this dual and contradictory mandate comes closer to reflecting the complex nature of domestic violence than the older, simplistic standard that equates success with conviction" (at 46). This view suggests that it may take victims several contacts with the justice system before they are ready to testify and view the courts as resource. Victims are referred by the Crown to the Women's Advocacy Program for counselling and a discussion of options prior to a Crown decision not to proceed.

14. Supra note 1 at 48.

15. Supra note 72, Appendix.

16. 16Other reasons included that the accused entered into a peace bond, that key witnesses could not be located, Crown witnesses were thought to be unreliable, or a review of the evidence revealed that no offence had occurred (supra note 14 at Appendix D, 24).

17. Supra note 24 at 15-16.

18. 18Supra note 72 at 5.

19. Supra note 24 at 19, for example.

20. See infra 65, 66 on this issue.

21. On the issue of victim recantation specifically, the 1999 Evaluation Report (at Appendix D, 25) found that victim recantation "was a factor in 10 [of the 119] cases and led to withdrawal/ dismissal in 3 cases, acquittals in 4 cases, a reduction in charges convicted on in 2 cases...and appeared to have no effect in 1 case."(22)

22. Supra note 13 at Appendix D, 25.


23. Supra note 13 at Appendix D, 25.

24. Supra note 72, Appendix.

25. The issue of training, for all sectors of the justice system, is discussed in more detail in a separate section.

26. 24There are four possible entry points to a diversion program: pre-charge, post-charge, post-conviction, post-sentence [Nova Scotia, Minister of Justice, Restorative Justice: A Program for Nova Scotia (Halifax: Communications Nova Scotia, 1998) at 8.] While the focus of most commentary on diversion in the domestic violence context is on post-charge diversion, it should be noted that other approaches are being used in some jurisdictions. For instance, some aboriginal communities use sentencing circles to develop alternative sentencing processes more reflective of community needs. The limited evaluations of such processes that are available suggest ambivalence regarding the merit of such an approach. While 72% of offenders involved in one community's healing circle found it a positive experience, only 28% of victims did so [LaPrairie (2000), cited in Canada, Minister of Justice, Alternatives to Prosecution in Domestic Violence Cases: An Overview of the Research Literature, by S. Moyer (Ottawa: 2000)]. An alternative approach to certain domestic violence cases which appears to operate outside the criminal justice system, has been used in Australia and has been tested in Newfoundland [Burford, G. & Pennell, J., Family Group Decision Making Project (National Crime Prevention Council of Canada, 1997)]. Known as the community conferencing strategy, this approach is based on the philosophy that shaming and apology are more effective than punishment in reaffirming community values, and that "communities of concern," comprised of the victim and offender's family and friends and others, are better equipped to intervene in family violence than is the justice system. In Newfoundland and Labrador, the Family Group Decision-Making Project was designed to create a forum in which families could participate in deciding the best course of action. Time was spent by a coordinator preparing families and professionals for the conference and the family was left to develop a plan that addressed the issues identified by the referral source (e.g. child welfare caseworker or police). Once developed, the referral source had to approve the plan as did the coordinator to ensure it addressed the issues, brought the requisite services to bear in support of the family, and included a system to monitor implementation. Police or child welfare were to monitor safety of family members. For further discussion, see Johnson & Kanzler, "Treating Domestic Violence: Evaluating the Effectiveness of a Domestic Violence Diversion Program" (1993) 15 Studies in Symbolic Interaction 271; H. Johnson, Dangerous Domains: Violence Against Women in Canada (Scarborough: Nelson Canada, 1996); several chapters in Valverde, M., MacLeod, L. & Johnson, K., eds., Wife Assault and the Canadian Criminal Justice System: Issues and Policies (Toronto: University of Toronto, 1995) and C. G. Nicholl, "From Battering to Bettering: Changing the Lives of Victims of Domestic Violence and their Abusers." Perspectives on Crime and Justice: A Series of Papers Reconsidering Current Approaches (Washington, 1998).

27. See Appendix E.

28. 26Ontario does not consider this to be diversion because the offender still receives a criminal record.

29. Stastistics Canada, supra note 1 at 47.

30. Moyer, supra note 99.

31. 29As with Ontario, Yukon Territory does not label this as a diversion program, since a domestic violence case still results in a charge; arrest if appropriate; conviction; sentencing, with a probation period of up to two years; and a criminal record. Breaches of any probation order imposed can result in re-sentencing of the defendant on the original charge and/or sentencing on further charges.

32. 30 It should be noted that some jurisdictions have questioned whether the law actually authorizes a court to delay sentencing pending treatment. While the Criminal Code permits a Judge to adjourn for information, it is argued that the Code does not allow adjournment for up to a year for treatment.

33. Gondolf, E. W., The Impact of mandatory court review on batterer counseling program compliance: An Evaluation of the Pittsburgh Municipal Courts and Domestic Counseling Center (Indiana, Pa: Indiana University of Pennsylvania, Mid-Atlantic Addiction Training Institute, 1998), online:, cited in Moyer, supra note 99.

34. United States, Department of Justice, Office of Justice Programs, National Institute of Justice, Batterer Intervention Program: Program Approaches and Criminal Justice Strategies, by Healey, K. & Smith C. with O'Sullivan, C. (1988), as reported in Ontario, Ministry of the Solicitor General, Domestic Violence Justice Strategy - Partner Assault Response (PAR) Programs: An Overview (21 July 2000), cited in Moyer, supra note 99.

35. Supra note 67.

36. Supra note 72 at 2.

37. Supra note 72 at 5, 10.

38. This would be in keeping with the Adult Diversion Program currently established in Nova Scotia for certain other offences.

39. Supra note 72 at 5.

40. These criteria are taken primarily from the Public Prosecution Service submission, supra note 72 (Appendix G). Guidelines from some other jurisdictions are more restrictive. For instance, the British Columbia policy on Violence Against Women in Relationships states that alternative measures are to be used only in "exceptional circumstances." Thus, the British Columbia criteria include the following: "Alternative measures shall not be recommended unless the [Alternative Measures] Contractor believes that the incident that gave rise to the referral is isolated, out of character for the offender and is not part of a history of violence" [British Columbia, Ministry of Attorney General, Corrections Branch, Guidelines for Alternative Measures Contractors: Referrals for Offences Involving Violence Against Women in Relationships (2000) at 3].

41. Such counselling should include information on possible outcomes if the case were prosecuted through the courts.

42. See Statistics Canada, supra note 1 at 45-47.

43. 41Supra at 49.

44. Statistics Canada, supra note 1 at 47-48.

45. 43As part of this pilot project, Ontario also introduced the early intervention stream at several sites, as described in the section above on diversion, supra at 58.

46. Supra note 72 at 10.

47. Woman Abuse Council of Toronto. July, 1999: Court Watch - Executive Summary.


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