From the moment the criminal justice system is notified of a VAWIR case, policy directs that the safety of the victim must be made a priority and any actions necessary to send a strong message to the offender and society at large that violence against women in relationships will not be tolerated in British Columbia must be taken. Using the 1996 revision of the VAWIR policy as a guide, the following analytic summary will attempt to highlight how the criminal justice system is supposed to respond to a case in which a woman has been assaulted by her partner.
The first point of contact with the criminal justice system for a woman who has been assaulted by her partner is the operator in the communications section of the police department. The VAWIR policy does not provide these communications operators with any explicit guidelines that could be uniformly applied across the province as to how such a call should be handled when it is first received, other than to state that all "spouse assault" calls "must be given priority, as the victim may be at risk." Police departments, however, do include procedures for these operators to follow in their directives for responding to VAWIR cases. While these procedures vary depending on the location and jurisdiction, generally complaint takers and dispatchers are instructed to treat such calls as "life-threatening" incidents, to dispatch police to "every incident" and not to cancel police response even if a follow-up call from the residence requests such cancellation. A further caution included in at least one police department's VAWIR procedural directive is not to allow biases, such as the victim being under the influence of drugs or alcohol, to influence the priority they give to such calls. This caution in itself emphasizes the need for all 911 operators to be knowledgeable of the dynamics of wife abuse. For evidence and for monitoring purposes, all 911 emergency calls are to be tape recorded and the dispatch/communications operator is to make a computer record of the call.
Information to be secured and conveyed to the responding police officers by the dispatcher is directed at determining both the immediate safety of the officers attending, and the victim, and if there are children present, their safety also. This information includes the present whereabouts of the suspect; his description; if the suspect is under the influence of drugs or alcohol; the presence of weapons; the history of abuse; and the presence of children. While the communications operator is to ask if a court order (no-contact conditions of bail/probation orders, peace bond, and/or civil restraining orders) against the suspect exists, it is the attending officer's responsibility to determine both the validity and enforceability of these orders by checking with CPIC (Canadian Police Information Centre) and the Protection Order Registry.(3) If there is evidence that any of these orders has been breached, the officer must include a recommendation that charges be laid in connection with this breach in the Report to Crown. If both civil and criminal orders are in place, for example a no-contact order and an access order giving the offender visitation rights to the children, the VAWIR policy states that "the most restrictive terms must be obeyed (e.g., the no-contact order overrides the access order)" (Ministry of Attorney General 1996a:5). Breaches of bail or probation orders are to be responded to immediately by police and the policy instructs that these breaches should be treated as "crimes in progress as a known violent offender may be confronting the victim." The police officer is to arrest and submit a report detailing the grounds for the arrest to Crown who will in turn use the report at a bail hearing (Ministry of Attorney General 1996a:9), presumably to secure more stringent restrictions on the offender.
The police officers who attend a VAWIR incident are directed by the policy to conduct a complete investigation in every case of "spousal assault" regardless of whether or not charges will be recommended. A complete investigation usually consists of more than just the initial visit, including obtaining the 911 tape, follow-up interviews of neighbours, obtaining medical evidence, and taking a complete history of abuse in the relationship. During this investigation, the police officer should ensure that the victim, child witnesses, or family members are not interviewed in the presence of the suspect. Whether or not a written statement is provided at the time of the incident is the victim's choice. If she decides against giving a written statement this decision is not to affect the officer's decision to recommend charges. Instead the police officer is supposed to inform her that she can give such a statement at a later time and refer her to victim services or some other support service where she can get needed assistance. The onus is on the attending officer to follow up and thus secure a written statement, however it should be noted that even if no written statement is obtained, charges could, according to the policy, still be recommended and approved by Crown.
Officers must complete and submit an occurrence report whether or not a charge is recommended. If no charge is recommended a supervisor must review the file to ensure that this decision was not made contrary to the policy. In cases where the evidence is not sufficient to support a charge, yet the complainant on reasonable grounds fears for the safety of herself and/or her child, or she fears that someone will damage her property, the police are now empowered to apply for a 810 peace bond on her behalf. If such an application is made either by the police or the victim, a Report to Crown Council must be submitted. If Crown decides there is sufficient evidence to proceed, a court document will be prepared called an information, which sets out the grounds for the application. The victim will be required to swear before a justice of the peace that the contents of the information are true. The woman will also be required to appear before a judge to state what happened, during which time the person against whom the peace bond is to be enforced will also appear. If the judge agrees that there are reasonable grounds for fear, an order can be made that the defendant be bound to keep the peace and be of good behaviour for up to one year. Other conditions can also be imposed, such as a prohibition of possession of any firearm and/or a ban on contacting the victim. No criminal record is incurred as a result of a peace bond, however refusal to sign the bond can mean up to one year imprisonment.
If evidence indicates that an offence did take place then the officer is required to make an arrest and submit a report to Crown counsel recommending that charges be laid. Evidence as outlined in the policy, includes "an admission by the offender, photographs of injuries, medical evidence, physical evidence, and a written statement by the victim and any independent witnesses" (Ministry of Attorney General 1996a:7). These criteria indicate that despite the broader definition of abusive behaviour outlined in the policy, "evidence of abuse" in a relationship on which an arrest can be made, is still highly dependent on physical evidence, which often may not be readily visible to police officers. As McCormack (1995:33) points out, while an awareness by police of the signs of other forms of abuse such as symptoms of psychological abuse, there being "no food in the fridge" or the "woman [having] no money in her wallet," is crucial when substantiating a woman's claim of abuse, they are not part of the Criminal Code and as such "do not play an important part in proving a case of wife assault." That a victim's statement needs to be corroborated by independent witnesses also hints that patriarchal constructions of women as, have not been entirely eradicated from either the VAWIR policy or the Criminal Code.
Emphasized throughout the policy is that - whether it be by police,
Crown, the judge or corrections officer - it must be made clear
to both the victim and the offender that the arrest is being made
based on the evidence available and will be proceeded with regardless
of the victim's wishes. The intent here is to impress on the
offender the futility of any attempts to prevent prosecution by
intimidating, threatening, or further harming the victim and/or
witnesses. That "evidence" is to be the sole basis
for arrest is further reinforced by the cautions in the policy
to police that the decision to recommend charges should not be
influenced by either the victim's or suspect's consumption of
alcohol or drugs, nor by whether in the police officer's judgment
the victim will be willing to appear in court.
According to VAWIR policy, arresting and holding the accused for a bail hearing is preferable "in virtually every case" to releasing the accused on a "promise to appear," the reason being that an arrest ensures the offender's attendance in court, prevents any repetition of the assault before bail conditions can be imposed, and also precludes possible intimidation of witnesses (Ministry of Attorney General 1996a:5, 6). The bail hearing is considered essential to the safety of the victim because it enables certain restrictions to be placed on the offender, in particular a firearms prohibition. The accused may also be placed under supervision and prohibited from consuming alcohol or drugs, especially when there is "a history of violence either within or outside the relationship" (Ministry of Attorney General 1996a:6). While it is not articulated in the VAWIR Policy (1996), the Vancouver Police Department (1992:11) does direct its members to "discuss all appropriate bail conditions with the victim, (no-go to residence, place of employment, schools , other family homes, etc.; and no-contact with the victim and family, etc.) and recommend such conditions in the report advising Crown that the victim wants these conditions." This directive does give the women some say in what she feels would make her safe rather than just leaving it to the criminal justice system to make this decision for her.
When children are involved the officer must, if he or she has reasonable grounds to believe the child's health or safety is in immediate danger, take charge of the child and immediately notify the Ministry of Social Services or First Nations child protection social worker of the situation. The final decision as to whether a child will be removed rests with the child protection social worker. An important addition to the 1996 revision of the VAWIR policy was to highlight that "the suspect, in order to control or intimidate the victim, may have threatened her with removal of her child(ren) by the Ministry of Social Services" (Ministry of Attorney General 1996a:8). This warning about the dynamics of abuse should encourage the police officer and the child protection social worker to weight the evidence of child endangerment very carefully before making any attempt to separate that child from its mother.
All Reports to Crown on VAWIR cases are to be designated as "K" files to facilitate tracking when information is requested by the victim, and to expedite the case's disposition so as to reduce emotional stress to the victim and children and thus the "risk of further harm" (Ministry of Attorney General 1996a:8). Notification of the progress of the investigation and the status of the offender is fundamental to the safety of the victim . Under the Victim of Crimes Act (RSBC 1996) Chapter 478, the victim must be notified of anything which affects her, such as status of the police investigation, bail hearings, restraining orders, the charges that were laid, and the outcome of each court appearance and the final disposition, sentence, bail status of accused; conditions of probation, and any change in the custodial status or the release of the offender. An important first step in this notification process is for the attending officer to provide the victim with his/her name, the case number and a contact number.
In addition, the police are to provide a number of services that both enhance the woman's safety and meet any special needs she may have. For example, if a woman wants to get her personal belongings from the residence, the police officer is to accompany her. Similarly when requested to do so the police officer is to arrange safe transportation to a transition house and/or accompany her to court. Police are to inform the woman of the community services, specialized victim services or in lieu of the latter, police or Crown victim services, that are available to support her and help her negotiate her way through the criminal justice system. The victim can have a victim support worker or an advocate present at any police interview and she should be informed of this. Finally the police officer is instructed to ensure that any special needs of the victim are recognized, where possible accommodated, and are noted on their reports to Crown. The implication of this latter procedural instruction is that all police officers will be given extensive training on both the dynamics of abuse and what this means for women from non-dominant group backgrounds.
Crown counsel will decide whether or not charges recommended in the police Report to Crown will be made. It is important to note that Crown counsel does not represent the victim, but rather the public interest, and as such is required to proceed with prosecution of any VAWIR case where there is a substantial likelihood of conviction, regardless of the victim's wishes or the victim's reluctance to testify as it is "almost invariably in the public interest" to do so. Even if the charge is of a minor nature charges should be considered by Crown. If there is a history of violence, then Crown is to consider laying additional charges relating to serious incidents in the past (Ministry of Attorney General 1996a:11).
Given pro-active prosecutorial stance of the VAWIR policy, barring exceptional circumstances, Crown is not to stay charges prior to trial, especially if there is evidence that the accused has attempted through threat or intimidation to prevent the victim from testifying, or there is a history of violence. The conditions under which charges can be stayed at trial include refusal by the witness to testify when no other evidence is available.
Crown, in the interest of the emotional and physical well-being of the victim and any children involved, is to expedite all "K" files by ensuring early trial dates and opposing any applications for adjournments that are not well founded. If the accused is at large at the time charges are approved, Crown should request an "unendorsed warrant" from a justice of the peace to ensure that appropriate bail conditions or a detention order can be imposed (Ministry of Attorney General 1996a:12).
To reinforce the message to her abuser that the victim is under court order to testify, she should be served with a subpoena personally rather than through the mail. If the victim does not appear, Crown is advised not to apply for material witness warrants, except if the circumstances of the case are severe and to do so might mean that the victim would testify, or if the victim's testimony is also required for other charges relating to a child victim. When this avenue is pursued, every attempt should be made to ensure that the execution of the warrant will inflict only minimum hardship on the victim. When a judge is considering holding a woman in contempt for failing to attend or committing her to prison for failing to testify, the policy also instructs Crown to take the position that these actions would be inappropriate since they would be ineffective and constitute re-victimization. The involvement and risk to children in the situation may impact on this position (Ministry of Attorney General 1996a:15).
With respect to sentencing, Crown is directed to ensure that no plea bargains are entered into without first consulting the victim; to seek probation conditions that would enhance the safety of the victim such as no-contact; reporting conditions; and where appropriate, the successful completion of an assaultive men's treatment program ("success" here being determined by the probation officer).
As well as ensuring that a history of abuse, even in first time offences, is made available to the judge to be used in determination of an appropriate sentence, Crown is also to see that victim impact statements are provided prior to any sentence decision. Crown is to pursue "deterrent sentencing"; oppose any conditional discharges as they would not result in a criminal record; and equally oppose family and couple's counselling which given the ongoing power imbalances that exist in any situation of relationship violence, are clearly inappropriate. Finally, it is Crown's responsibility to explain the case outcome to the victim.
Judicial independence prevents the Attorney General from directing justices of the peace to follow the VAWIR policy when making decisions in such cases, however the policy does include a number of recommendations that the judiciary might consider. For example, justices are urged to respond expediently to any woman personally requesting a peace bond, referring her to police in order to get the necessary Report to Crown that will enable an information to be laid. Similarly, the recommendations impress upon justices that VAWIR cases are to be taken seriously as the violence may escalate, hence any delay in issuing warrants, or setting trial dates, or allowing unfounded adjournments may be life-threatening for the woman complainant. The justices are also strongly encouraged to develop training programs on violence against women relationships in cooperation with police, Crown counsel and community groups working with battered women, to better inform their judicial decision in VAWIR cases.
Corrections involvement in VAWIR cases first occurs after the bail hearing to ensure that bail conditions are adhered to; then, again in the preparation of pre-sentence reports; when the offender is in custody; and finally in post-sentence supervision, that is, at the time of probation/parole and/or conditional release. After bail conditions have been set, the bail supervisor must, without jeopardizing the victim's safety, inform her by means of a printed copy what bail conditions have been imposed and how to report any breach of these conditions and of any subsequent changes in protective conditions of bail. Referral to specialized support services in the community is also to be made. If contact with the victim is not possible, the reasons must be recorded an included in the "K" file. Bail authorities also must ensure that all relevant information concerning bail conditions and any changes to these conditions are recorded on CPIC. Any breach of these conditions requires the bail supervisor to submit a report to Crown and to advise the police immediately. If the breach is only "alleged" and the bail supervisor does not take action, the case must be discussed with a superior and the reasons for non-action recorded in the file.
After the offender has been found guilty of a VAWIR offence, probation officers who have received specialized training in the dynamics of relationship abuse prepare the pre-sentence report. In order to prepare this report the probation officer must make every effort to contact the victim, to explain why the report is being prepared; obtain relevant information about past abuse in the relationship; and hear the victim's version of the offence and the impact this offence has had on her life, the lives of any others affected and particularly on the lives of any children involved. The probation officer is to ensure that these impact statements are written in court acceptable form. If the probation officer is aware of an appropriate men's treatment program, this too should be included in the report. However, the policy directs all concerned that "treatment should not be considered as an alternative to incarceration or any other sanction, and if made a condition of probation, the probation term must be sufficient length to allow for successful completion of the treatment program. [If a recommendation is made that the offender attend a treatment program then the probation officer is instructed to word such a recommendation as] ... 'attend, participate and complete assaultive men's counselling as directed by the probation officer, and to the satisfaction of the assaultive men's treatment program staff and the probation officer is required'" (Ministry of Attorney General 1996a:20).
If sentenced to jail time, the policy instructs that the offender must not be allowed "any contact whatsoever with the victim" (Ministry of Attorney General 1996a:19). Once the offender is released, the probation officer is to supervise the offender to ensure that probation conditions are carried out.
In any cases handled by family court counsellors, the policy does not recommend mediation, asserting that "the issue of violence itself should never be mediated" (Ministry of Attorney General 1996a:22). Prior to using mediation in any cases of conflict, the Family Court Counsellors are advised to identify "the power and control dynamics of the relationship, then [to take] steps to ensure a safe and open negotiating environment" (Ministry of Attorney General 1996a:22). When accessing a case, especially one in which there are criminal charges emanating from VAWIR, each party must be interviewed individually and the case should be screened for violence and other power imbalances that might exist. This screening should be applied in all cases, including when there has been court-ordered mediation or when making custody and access and or maintenance reports.
The purpose of the victim services program is to prepare, support
and guide the victim through the criminal justice system process,
from police involvement to court disposition. Victim services
workers are also to attend to any needs the victim may have that
are related to their case such as ensuring transportation and
child care needs are taken care of when the victim makes court
appearance, etc. and/or any special needs the victim may have
due to their cultural or religious backgrounds or circumstances
such as ability. This program is fragmented into police victim
services, Crown victim services, and specialized victim services,
the latter providing court accompaniment. A woman will interact
with each of these victim services separately as her case proceeds
through the system.
3.
CPIC, Canadian Police Information
Centre, opened in 1972 and located at RCMP headquarters in Ottawa, is an
integrated, automated system which provides tactical information on crimes
and criminals. The Central Registry of Protection Orders was set up by
the BC Ministry of Attorney General in 1995, and provides police with
24-hour access to information on valid restraining orders issued by a
judge in the civil court, and peace bonds (officially known as Section
810/810.1 Criminal Code Recognizances) issued by the criminal court.
Both orders restrict the activities of one person in order to prevent
harm to another person, and in the case of peace bonds, additional
conditions can be imposed designed to protect both children and
property.