Central to the 1996 VAWIR policy is that in all cases where there are reasonable grounds to believe that a woman has experienced assault in a relationship, the Criminal Justice System response must be one of rigorous and pro-active arrest, charge and prosecution, regardless of the wishes of the woman. While this pro-active directive has been lauded by some as one of the strengths of the policy, it has also generated considerable debate among feminists, among battered women from non-dominant communities and within criminal justice agencies - in particular the police - as to whether this stance constitutes the most effective response to violence against women in relationships.
A number of studies conducted in the early 1980s on the effectiveness of mandatory arrest, the most prominent being the Minneapolis study, conducted by Sherman and Berk (1984) sparked considerable interest among American and Canadian policy makers who were looking for new ways the criminal justice system could effectively respond to violence against women in relationships. It was argued in the Sherman and Berk study that arrest and incarceration were major deterrents in reducing the incidence of this type of violence. Replication studies of Sherman and Berk's experiment have produced mixed results. For example some support for Sherman and Berk's conclusions was evident in the findings of an influential Canadian study which was carried out in London, Ontario by Jaffe, et al. (1986). Jaffe, et al. found, through an examination of police files and interviews with victims/survivors, that not only was there a significant reduction in abuse when charges were laid, but that such action increased the victims/survivors satisfaction with the way police dealt with their cases. However, Jaffe, et al. noted that this reduction in abuse and increase survivor satisfaction, could not totally be attributed to the mandatory arrest policy in effect at the time. Instead, the "successes" found were, at least in part, a reflection of an consistent, coordinated and supportive community response to women abuse that had been developed in the London area (DeKeseredy & MacLeod 1997:123).
Subsequent studies on the effectiveness of mandatory arrest including six replications, which were commissioned by the National Institute of Justice and carried out in Dade County (Miami), Atlanta, Charlotte, Milwaukee, Colorado Springs and Omaha, did not support the arrest effect findings of the original Sherman and Berk study (Snider, 1995:247). Even more recent follow-up research by Sherman (1992; Schmidt and Sherman 1996), has concluded that after an interval of decreased violence, the level and incidence of violence actually escalates over time (see discussion in Belknap 1995; DeKeseredy & MacLeod 1997:123-125; Stanko 1995; Stark 1993, Welch 1994). Does this mean that mandatory arrest, a focal point of the BC Attorney General's 1996 VAWIR policy should be abandoned? Stark (1993:677) argues that it should not be, claiming: "from the standpoint of women whose personal lives are governed by norms of male dominance supported by structural inequities, noninterference functions to exacerbate control. Conversely, outside intervention that challenges existing power relations is a fundamental precondition for autonomy among the oppressed" (emphasis author's). In other words, noninterference would do nothing to reduce the violence that so often escalates of its own accord and may in fact reinforce the structural inequalities that led to the violence in the first place.
It is important to note that some research (e.g., Davis and Smith 1995:545) has connected the escalation of violence found over time after mandatory arrest, with attempts by the abuser to dissuade the victim from pursuing charges. This potential for escalating violence should not be an issue as the VAWIR policy instructs police and all other agencies involved in the case to inform both the suspect and the victim that it is the police not the victim that are recommending a charge be made and that, once made, these charges will proceed regardless of the victim's wishes. Furthermore, under the policy, arrest can have a number of immediate benefits for women which can directly address some of their safety concerns. For example, arresting the offender allows stringent bail conditions to be imposed including "no-contact" orders, supervision of the offender, and the enforcement of firearms/weapons, and alcohol/drug prohibitions (Ministry of Attorney General 1996a:6). Police do not have the power to impose these conditions. A concern raised however, from a feminist perspective, is whether the safety and security these measures are intended to provide for the women is anything more than just "an illusion of protection" (Wilmshurst 1997:13).
For feminists, the debate over criminalization of violence against women in relationships focuses on whether legal intervention is really the most effective way to respond to VAWIR and would work to eliminate such violence against women in the future. In the early seventies, feminists argued that criminalizing wife assault was one method of ensuring that this type of violence would be recognized and treated with some severity by society. Since then, many feminists (e.g., Currie 1998; Martin & Mosher 1995; Snider 1990; 1995) have noted "the double jeopardy inherent in this approach, namely that women who engage the criminal justice system as complainants/victims or witnesses to crimes against them are re-victimized by the courts in the very process of seeking redress" (Jiwani & Buhagiar 1997:4). For example, Snider (1995:244) points out that there are many cases where the emphasis on criminalization in VAWIR cases "has actually worsened the plight of the victimized [in that] women found themselves facing contempt charges for refusing to testify against batterers ... or arrested for pointing a gun to stop a beating [or] ... in other instances, [are] ... forced to contend with heightened state interference in their lives, facing social workers eager to investigate everything from finances to sex lives." Not only has criminalization decreased women's choices, Snider argues, but it has worked to disempower women and extend social control over their lives. Hence these feminists argue that criminalization, far from sending the message that violence against women in relationships is not tolerable in society, has instead deflected attention away from its root cause - that of gender-based inequality (Jiwani & Buhagiar 1997:4). As Currie has written: "wife battery as a social issue has been transformed into a policing issue. Within this discourse the issues concern legal rights, police protection and criminal justice: technical issues that can be safely met within the current system without any meaningful redistribution of power. For this reason, the effect of intervention could well be the strengthening of the very same processes and institutions that gave rise to the demand for justice in the first place" (cited in Wilmshurst 1997:12).
In part, the dilemma posed in the debate around criminalization is rooted in the "either/or ideological double-bind" in that any position that demands equivalent access to retribution for women who suffer relationship violence is taken to signify a pro-criminalization perspective. As Jiwani & Buhagiar (1997:4-5) have argued, "such is not necessarily the case. The desire to have access to justice or the same degree of retribution - equivalent in the sense that perpetrators of crimes against property and ... men suffer the same degree of retribution should they commit crimes against women - is rooted in the need to have crimes against women recognized by society and the state, and to have the seriousness of these crimes unchallenged. This perspective, embodies a [stance] ... which relies on pressing for access to justice and demanding ... state intervention, [while] simultaneously taking a critical position on the efficacy of treatments meted out by the justice system. To a large extent, this response is coherent with and grounded in feminism which argues for the total transformation of society and its institutions."
For women from non-dominant groups (e.g., First Nations women, immigrant and refugee women, women of colour, lesbians, women with disabilities or women defined as non-dominant by virtue of their class position in society), the use of mandatory arrest and rigorous prosecution generate qualitatively different repercussions than they do for dominant group women. Disregarded in these policies is any acknowledgement of the problematic relationships that women from non-dominant groups have with the criminal justice system and, especially for First Nations women and racialized women, its racist practices (Flynn & Crawford 1998:93). Thus the systemic and institutionalized racism and classism, endemic in all the institutions of Canadian society, may mean that, as Currie (1998:47) argues, these policies will be primarily be implemented against non-dominant men who, while, not representative of male abusers of women, are the ones who have "the fewest resources and least ability to resist labelling and prosecution"; or as Flynn & Crawford (1998:93) claim might lead to the "delegitimizing" of non-dominant women's experiences of abuse; and as both Flynn & Crawford (1998:93) and DeKeseredy & MacLeod (1997:124) assert might result in economic instability and/or "being ostracized by their families or communities for disgracing these groups by drawing their abusers to the attention of the legal authorities." The argument put forth against the universal use of mandatory arrest in VAWIR cases where the victim is from a non-dominant group, then, is that if the "harms" that result to the woman from a non-dominant group far exceed those done by the violence, should we still pursue "aggressive criminal justice intervention and ... [if] there is real concern that the strategy contributes to generally damaging or retrogressive trends in the justice system, by impacting most harshly on disadvantaged and minority men, for example, how can it be relied on to advance equality for women?" (Martin and Mosher 1995:8).
The counterargument is that while racism and classism, are pervasive in Canada's criminal justice system (see Currie 1998; Flynn & Crawford 1998; Martin & Mosher 1995; McGillivray & Comaskey 1998; McIvor & Nahanee 1998; Snider 1990, 1995; Zellerer 1996), and both need to be eliminated, the fear that men from non-dominant groups will be victimized by the criminal justice system can not be used to excuse or ignore their violence against women from non-dominant groups. As Flynn & Crawford (1995:95) put it: "[too] often, black women's 'private' claims of domestic victimization are accorded secondary importance next to black men's 'public' claims and fears of racial victimization. This claim translates racial oppression along gender lines, insinuating that black women's bodies are less valuable than black men's." In other words, the fact that the criminal justice system needs to be held accountable for its racism, sexism, and classism and transformed, just as Canadian society as a whole must be transformed, to eliminate social and racial inequalities so that justice can be experienced by all its members, should in no way exonerate the legal system from intervening to protect the physical well-being of women from non-dominant groups who are experiencing violence in their relationships. What it does mean is that the VAWIR policy lacks provisions for setting in place a monitoring system, independent of the criminal justice system and government, that would ensure the abuses feared and experienced by both men and women from non-dominant groups, in their interaction with the criminal justice system, are exposed and rectified.
The pro-arrest stance of the VAWIR policy raises another issue
that poses conflict for the police when they follow the policy
and which has potentially negative consequences for battered women
when the case reaches the trial stage. Section 495(2) of the
Criminal Code requires that before police arrest there
must exist "reasonable grounds" to believe that such
an action is necessary to prevent the "repetition of the
offence" and/or to ensure the "person will ... attend
court in order to be dealt with according to law." Therefore,
when a trial judge perceives that the officer arrested according
to the VAWIR policy rather than section 495(2) of the Criminal
Code, there is a high risk that charges will be stayed despite
the evidence that a "spousal assault" did indeed occur.
This was the case in the trial of Fred Harold Venzi, in which
the trail judge stayed charges because "... the officer ...
admitted the arrest was effected to comply with a policy directive
which emanated either from the Attorney General's office or high
within the R.C.M. Police command that all persons to be charged
with spousal assault shall be arrested. This directive (if indeed
it exists) flies in the fact of the legal requirements of S. 495(2)
which requires that the police exercise a discretion or judgement
based on reasonable grounds before making an arrest. The arrest
is this case was unlawful." While the Supreme Court did
eventually overturn this decision, the Supreme Court judge still
concurred with the trial judge on the point of concern here saying,
"I agree that an arrest solely on policy rather than the
criteria contained in S. 495(2) is unlawful and arbitrary."
This points to a major weakness in the VAWIR policy that has
been well articulated by McCormack, namely, "the policy tries
to remove the discretion of the criminal justice system so that
all spousal assault incidents are treated the same. Yet, it is
only a policy and not legislation. Therefore there is no legal
pressure to follow the policy and adhere to its principles"
(1995:53). McCormack goes on to ponder that even if the Attorney
General's policy was a "trial run" to assess its effect
on the rate of spousal assault, it has been in place now for over
ten years. He asks how many years do we have to wait and see
if the policy is working before a problem that is killing women
is made law (McCormack 1995:53).
Statistics show that police departments in British Columbia have significantly increased the number of recommendations made to Crown for charges in VAWIR cases in the years since the policy was revised in 1993 (see Gill 1998; Ministry of Attorney General 1996a; Wilmshurst 1997). Since there is no way that the actual figures of violence against women in relationships in the province can be known, these increases in "cleared by charge" cases are seen as significant indicators that the policy is working (McCormack, 1995; Jaffer, et al. 1992; Lannon and Rivers 1994). However, can we assume from these increases in police recommendations to charge statistics that women in BC who experience violence in their relationships are safer because of the intervention of the criminal justice system. Rigakos (1994, 1995) and Sidhu (1996) would argue "no."
Rigakos (1995), in his 1994 study on the enforcement by the Delta
BC Police Department of peace bonds, restraining, and other court
orders aimed at securing a battered woman's safety, maintains
that police action or inaction when responding to breaches of
court orders and peace bonds and how they justify these actions,
can be explained by analyzing how the patriarchal formulations
of women, held by society as a whole, operate at the subcultural
level within the police department. He argues that while what
he refers to as "the masculine occupational culture of the
[Delta] police department" does not produce patriarchal attitudes,
it does reproduce those found in society, and that this reproduction
has negative consequences for the safety of abused women. This
is evident, he claims, in the conservative way in which police
officers view women, family, and marriage as reflected in their
focus on explanations that excused violent men. For example,
Rigakos (1995:237) illustrates how the responses of police officers
when asked about the "cause" of "domestic"
violence, tended to validate the rationales of men for their abusive
behaviour:
Alcohol, huge economic hardship, being laid off from a job, the breakdown of the family unit. (Senior Police Administrator)
Alcohol. You can say money matters, you can say financial, but all those things lead to the alcoholism which leads to the guy coming home and slapping around his wife and vice versa. (Male Constable)
Battered women, on the other hand, were negatively stereotyped as "liars, manipulators and unreliable witnesses," and as the probable cause of the violence inflicted on them (Rigakos 1995:234). The following quotes from interviews with Delta police officers, that Rigakos (1995:238, 239) conducted during his research, reflect this view:
Often these restraining orders are based on something so far from the truth you can't even see it. (Male Constable)
Women are using these orders to manipulate their husbands. (Male Constable)
It appears that some women are using the Attorney General's policy on "police shall arrest" at domestics, as a tool to gain an upper hand in divorce proceedings, and child custodies. (Male Constable)
This tendency of the part of police in the Delta study, to be
less critical of men who commit violence against their partners
than of the women who experience this violence was also found
in a 1996 study done in Richmond, BC, by the Richmond Coordinating
Response Committee to End Violence Against Women. For example:
The women [in the study] indicated that when they contacted the police or where a neighbour intervened, the response was timely in a crisis situation. The women also indicated that once the police arrived on the scene, the abusers would calm down and reassure the police the everything was fine. In the meantime, the women were fearful of their partners, reluctant to speak out for fear of further abuse, felt a strong sense of humiliation and shame from the abuse and public exposure. (Sidhu 1996:34)
The women interviewed in this study also related that the police often did not probe further, accepting the abusers claims that "everything was fine" and then leaving, often not making any follow-up calls to check on the situation, even in cases where such a call would seem warranted, such as the woman had suffered injury (Sidhu 1996:35).
It should be noted that the "the masculinist subculture"
Rigakos claims was pervasive in the Delta Police Department, which
viewed women as "untrustworthy and prone to lying,"
was not, according to his own interview data, solely restricted
to police, but found at other levels of the criminal justice system
as well. For example, Rigakos in an interview with Crown Counsel
recorded this response about police action or inaction in enforcing
restraining orders:
First of all, they still have to use their discretion because it's still very possible for a woman to make an allegation against her husband just to get him out of the bloody house. (Crown Counsel)
While it is impossible to make generalizations from these limited
research studies, the findings do suggest that attitudes of the
criminal justice system toward women mirror those in society as
a whole, that is, women are valued negatively. Given this, can
a policy that emphasizes intervention by a patriarchal institution
as the primary means of protecting women from abusive partners
really succeed in realizing this goal?
While the policy states that police should not ask the victim whether they want charges to be laid and that the decision to arrest should not be based "on the apparent willingness of the victim to testify in a criminal prosecution," the attending officers may include on the report to Crown, "his or her impression as to whether the victim will be a reluctant or hostile witness" (Ministry of Attorney General 1996a:7). The question these procedural instructions raises is whether arrest and prosecution will be pursued "rigorously" if the victim is perceived as unlikely to appear at the trial. Studies that have been carried out suggest that they will not be. For example, the "most disturbing conclusion" of the research carried out by Hannah-Moffat (1995) on two police forces in Toronto, was the negative and suspicious view that the majority of officers held of the victim. Officers generally portrayed the victim "as weak, vulnerable, unreliable and uncooperative" (Hannah-Moffat 1995:45-46). Women were often perceived as "reluctant witnesses" who could not be relied upon to support the charge and testify. As a result, officers tended not to charge in cases where the victims' claims of abuse were not substantiated by visible physical evidence. This assumption that women would be "reluctant witnesses" also underlay what Hannah-Moffat maintained was the general reaction expressed by many of the police officers, namely, responding to "domestics" is a waste of valuable police resources and time.
Rigakos' (1994, 1995, 1998) finding in his study of the Delta police department revealed similar inaction in responding to VAWIR related incidents in which the victim was judged to be a "reluctant witness." Although Rigakos found that the actual incidents of assaulted women failing to appear or refusing to testify were rare - only one in ten in 1993 in Delta - he argued that through the telling and retelling of these exceptional occurrences by police officers to each other this "battered woman as unreliable witness" stereotype was reinforced as a norm in their minds. This false assumption that the battered woman would be a "reluctant witness" and not appear at trial, coupled with the perception that, while the police were doing everything they could to protect women, the other agencies in the system thwarted their efforts by not taking "spousal assault" cases seriously, became justifications for police inaction in arresting for breach of peace bonds and court orders.
In VAWIR cases the police are supposed to be neutral, but when
making an arrest, the policy requires the police to take sides.
Sometimes police are reluctant to arrest one person, especially
if both are claiming to be victims of mutual battering. Rigakos
(1995:236) suggests this reluctance to arrest just the male, is
rooted a "masculinist construction of violence against women"
that blames women for their own abuse and accepts male violence
as a "understandable" reaction, as illustrated by this
exchange:
The whole arrest thing is bullshit. You have some real douchebags who keep the house like a pigsty. Then the guy gets angry...and she's drunk and slaps him.
If he fights back she calls the police. Most of these things are started by the women anyways, it's just that they're smaller and end up losing the fight. She shows you her wrists are red where the guy grabbed her and expects you to arrest him even through she hit him first. All he was trying to do is keep her from hitting him by grabbing her arms and forcing her onto the bed. (Male Constable)
In the preamble of the 1996 VAWIR policy the importance of criminal
justice personnel being able to recognize the power imbalances
embedded in relationship violence is stressed (Ministry of Attorney
General 1996a:3). Yet when addressing how the police should respond
to VAWIR cases in which mutual battering is claimed, it is left
up to the individual police department to instruct or not instruct
their members on the necessity of only arresting the person who
has control in the relationship. Police procedural instructions
can reflect a considerable understanding of the dynamics of abuse,
as illustrated in this example:
Frequently the investigating officer will be faced with an incident where the suspect alleges that he has also been assaulted by the woman. To arrest both parties in apparent compliance with the VAWIR policy is simplistic and inappropriate. Members must fully investigate the incident and determine who has control in the relationship. Where the evidence indicates that the woman was protecting herself from real or threatened violence, members should not arrest her, unless the assault is serious. Members should normally only arrest and charge the aggressor. (Abbotsford Police Department, VAWIR policy, Dec. 1997:Part II, A 26, 633)
It would appear, however, as indicated by Rigakos' findings, that the VAWIR policy has no way of ensuring that the depth of understanding of alleged mutual battering incidents reflected in the Abbotsford Police Department policy is that of all police jurisdictions in BC. Therefore, like its predecessors, the current revised VAWIR policy still lacks of any mechanism that would ensure uniform and consistent implementation, province-wide, of all its procedural directives.
Stalking laws were first enacted, in 1993, as a response to men's claims of being stalked by their former partners (Kong 1996:1). Subsequent statistics, however, have shown that in the majority of cases it is women who are stalked and that the stalker is most frequently a former partner (Gill and Brockman 1996, Jones 1996; Kong 1996). For example, Gill and Brockman (1996:25, ix) in a Canada-wide study of stalking cases between 1993 and early 1996, found that 91 percent of the accused were men and 88 percent of the victims women and only 12 percent were total strangers. While both police and Crown Counsel have frequently used Section 264 of the Criminal Code - criminal harassment as it is officially known or stalking, as it is more commonly known - since it became law in 1993, (Gill and Brockman 1996:ix), it was first formally recognized in the 1996 revision of the VAWIR policy as part of the complex of offences that constitute violence against women in relationships.
In the Crown Policy manual on Criminal Harassment, which was produced to reflect this policy inclusion, the ongoing and serious nature of this offence is stressed, as is the need to seek deterrent sentences to reinforce in the mind of the perpetrator and the public the total unacceptability of this type of behaviour. While seldom is criminal harassment a once time incident, it can be, that is if it occurs within the context of a history of prior abuse. According to the Crown policy, criminal harassment is a legitimate charge in any situation where the conduct of the accused is such that the victim has "reasonably fear" for her safety or that of someone known to her - safety here being broadly defined as including one's psychological, emotional and physical well-being (Crown Counsel Policy Manual 1997:1). Evidence of criminal harassment includes: having to alter one's lifestyle or choice of action, history of violence or abusive behaviour towards the victim, uttering, physical statue and gender of the victim vis-à-vis the accused, evidence the accused knew his acts were of a harassing nature; the place or location and the time of day the act took place; whether victim was alone or in a small group; and/or the involvement of others known to victim. (Crown Counsel Policy Manual 1997:2). That such an act is to be taken seriously by the criminal justice system is evident in Crown Counsel's instruction that if the police release the accused on a "promise to appear," Crown Counsel is urged to apply to the justice of the peace or Provincial Court judge to issue a warrant for the accused's arrest. Bail Conditions are to be recommended in every case of criminal harassment to protect the victim. Crown is instructed to seek such restriction as firearms, weapons and knives prohibition, no-contact orders directly or indirectly, an area restriction within a certain radius of the victims home or workplace; bail supervision; and drug/alcohol prohibitions, where appropriate.
It would appear from its inclusion in the 1996 VAWIR policy and this special Crown policy to implement it, that criminal harassment is to be treated as a serious crime against women in BC. The reality is, however that this offence is not being treated seriously by the criminal justice system, here in BC or elsewhere in Canada. For example, Dawson and Sardi (1996), wrote in the Calgary Sun, citing Statistics Canada data, that "six out of ten people convicted of stalking in Canada in 1994 got off with a slap on the wrists." Kong (1996:10-11) adds, using the same Statistics Canada data, that in 1994, four in ten criminal harassment charges were dropped and of the 71 percent of those who were prosecuted, this prosecution was done by way of summary conviction, the maximum penalty being six month imprisonment or a fine not exceeding $2,000. Only 33 percent of all convictions actually did result in a prison term and only 4 percent of these were of a duration of longer than 12 months. In February, 1997, BC's Attorney General Ujjal Dosanjh, urged the federal Justice Minister Allan Rock and his provincial counterparts, at their annual meeting, to increase the maximum sentence for criminal harassment from five to ten years in order to send a clear message that the courts and the governments of Canada take this behaviour very seriously (Beatty 1997; Austin, 1997). The request appears to have fallen on deaf judiciary ears, as in October of 1997, a convicted stalker from Alberta was given a suspended sentence for uttering threats and breaching a peace bond, put on probation for three years and banished from the province for three years - his destination to serve his banishment - Victoria, BC (Laghi and Howard 1997).
In an extensive study of 601 cases of criminal harassment cases handled by Police, Crown and the courts, covering the period between 1993 to early 1996 period, and drawn from cases in Vancouver, Edmonton, Winnipeg, Toronto, Montreal and Halifax, Gill and Brockman (1996: ix) found that while police and Crown were frequently using Section 264 to prosecute harassment, 58 percent of these charges were stayed or withdrawn before they reached trial. When a conviction was made only 25 percent actually received a jail term (usually four months or less) and 94 percent of all convictions received a probation term" (Gill and Brockman 1996:ix). Gill and Brockman (1996:ix) also found that of those released before trial many had "previous criminal records and had a significant number of records of breaches of court orders, and were reported to have been violent with their partners in the past." Only a small number of the offenders, according to Gill and Brockman (1996:69) had an apparent serious psychological illness.
Significant among Gill's and Brockman's (1996:67) findings is that "the number of charges withdrawn or stayed by Crown and the number of charges withdrawn exchange for a peace bond, are very high in comparison to outcomes for Criminal Code charges as a whole and for most specific categories of crime." Therefore this legislation, Gill and Brockman concluded (1996:67) was hardly sending a strong message that this type of behaviour was not tolerable in Canadian society. Gill's recommendations are instructive in that they highlight some important problems that hinder not only the effective implementation of the criminal harassment provisions, but of general problems in implementing the VAWIR policy as a whole. For example, a major reason for staying or withdrawing charges is the victims reluctance to testify. Gill and Brockman (1996:70) suggests that some of this reluctance could be overcome if there were some standards for Crown making an interview with the victim a requirement prior the first court appearance. Similarly, Gill and Brockman (1996:70) recommends that there needs to be a more routine use of victim impact statements and history of past violence at sentencing hearings, that there should be systematic follow-up in all cases as well as more deterrent sentencing. These measures would go a long way to ensuring that not only criminal harassment is viewed as serious criminal behaviour by the criminal justice system but that all violence against women in relationships is a serious crime.
The VAWIR policy instructs Crown that "[g]iven the incidence of violence against women in relationships in Canada, the prosecution of such offences is almost invariably in the public interest" adding that "the decision to charge or continue prosecution shall not be governed by the wishes of the victim" and that "Crown counsel should consider charges in such cases, even if the nature of the offence is minor" (Ministry of Attorney General 1996a:11, emphasis in the original). In other words, the laying of charges and prosecution should be governed by the evidence gathered and not by any actions of the victim. The statistics on case outcomes, however, raise questions as to whether this directive is being followed by Crown.
Wilmshurst (1997:40),in her study to determine the impact of the 1993 VAWIR policy through a comparison the incidence of "spousal assault" and charge outcomes in the years 1992 and 1994, in Penticton, BC, found that while the Reports to Crown recommending charges by the RCMP increased 71 percent from 1992 to 1994, and the rate of approval of charges at Crown level remained unchanged at 89 percent, the increase in the number of charges that resulted in a stay of proceedings jumped a significant 158 percent. While recognizing that her study was too small to allow generalizations, Wilmshurst (1997:40), did suggest that this significant increase in the numbers of stays of proceeding between 1992 and 1994, was likely a result of either the Penticton RCMP being "too efficient" in following the pro-arrest directive of the VAWIR policy and not providing Crown with sufficient evident to allow for the laying of charges, or, alternatively, that Crown Counsel are "not efficient enough in following the directive to proceed with charges in every possibly case, regardless of the reluctance of the victim to testify" (emphasis added). Other statistical data hint that the latter may be the stronger explanation.
Holm (1994) in her analysis of stays of proceeding occurring in VAWIR cases, January and June of 1994, drawn from Vancouver Police Department files, found that forty-six and one-half percent of the cases in January resulted in stay of proceedings, as did twenty-four percent in June.(4) Holm (1994:22) concluded that "[i]t seems as though the Attorney General's mandatory charging policy is successful up until the day of trial [then either] the victim either fails to show up for court or is extremely reluctant to testify." Her conclusions indicate that conviction is still primarily reliant on the victim/witness's testimony rather than the evidence.
According to the Ministry of Attorney General's (1996b:8) survey on the number of "spousal assaults" reported to police in 1993-1994, the number of spousal offences where police recommended charges (cleared by charge) increased substantially from 56 percent in 1992 to 70 percent in 1993 to 76 percent in 1994, an increase of 36 percent over this three year period. However, only 50 percent of those charged were convicted, 31 percent were stayed by Crown, the remainder were dismissed by the court, Crown Counsel refused to prosecute or the outcome was unknown. The Survey found that the reason for the majority of the stays (55 percent) in 1993 and 1994 were due to "uncooperative" or "reluctant" witnesses and in over one-quarter of the cases, there was no reason given by Crown for staying the proceedings (Ministry of Attorney General 1996b:10).
These finding indicate that there is a serious problem in implementing
the pro-charge, rigorous prosecution directives of the VAWIR policy
at Crown level. Perhaps, Gill's and Brockman's (1996) recommendation
that Crown make more of an effort to interact with the victim
before trial may increase her willingness to testify, perhaps
the victim is not receiving adequate support and information from
victims assistance programs that would adequately prepare her
for the court experience; perhaps the designation of possible
"reluctant" or "uncooperative" witness on
the Report to Crown affects how rigorously prosecution will be
pursued, perhaps the evidentiary requirements for conviction need
to be changed. Regardless, one thing this data on stays of proceedings
does clearly illustrate is that many women who suffer abuse in
their relationships do not perceive the criminal justice system
as a viable safe option to ending the violence they are experiencing.
As previously mentioned, judicial independence means that justices of the peace are under no obligation to even read the VAWIR policy, let alone follow the Attorney General's recommendations to the Chief Judge of the Provincial Court, contained within it. Given this, the realization of the VAWIR Policy's intent, that is of using the legal system to send a strong message that violence against women in relationship in BC is a serious crime and is not to be tolerated, is in large part dependent on whether or not the offender is given a "deterrent sentence" for his abusive and violent actions.
That there is a gender as well as a racial and class bias in the legal system in general and the judiciary in particular has been well documented (e.g., Brockman and Chunn, eds. 1993; Bourne 1993; Coontz 1995; Currie 1993, 1998; DeKeseredy and MacLeod 1997; Law Society of British Columbia 1992; MacLeod 1995; Martin and Mosher 1995; McIvor and Nahanee 1998; Snider 1995). What needs to be addressed, in the context of evaluating the effectiveness of the implementation of the VAWIR policy through legal intervention, is whether this gender bias, which for many women intersects with a racial and/or a class bias, adversely affects the sentencing outcomes in VAWIR cases.
Seeking "tougher" sentences and rules for men who commit violence and abusive acts against their intimate partners has been an ongoing struggle at both the provincial and the federal level, with statistics indicating only limited success. For example, Attorney-general, Ujjal Dosanjh argument that the penalty for stalkers be increased to a maximum of ten years from five has not been passed and statistics demonstrate that for the vast majority of convicted stalkers there will be no jail time served, and for the minority who doing get sentenced to jail, rarely will they serve one year, let alone five (Beatty 1997; Gill and Brockman 1996; Kong 1996). Similarly, the BC Attorney General sought to change the law so that an abusive partner could be held for 48 hours or more after they have been granted bail by a judge (Pemberton 1997: A6). This suggestion was prompted by the brutal murder of Jennifer Petruik of Edmonton by her estranged and abusive husband, following his release on bail after assaulting her (see Cockburn 1997; Cowan 1997). While the federal justice department felt such a measure was needed, it was argued that to enact it would demonstrate "a lack of confidence in the judiciary" so despite the abuse and even deaths of women it could have prevented, assaultive partners are still almost always released on bail within 24 hours of arrest. Another review that raises questions about the will of the judiciary to impose "deterrent" sentences in VAWIR cases has just been launched - this time looking at the acceptance by judges of "provocation" as a justification for the murder of wives (Bindman 1998:A1). This inquiry was prompted by a number of cases in which provocation was used to reduce the murder charge to manslaughter, including that of Bert Stone who stabbed his wife 47 times because she "nagged" him. Stone received a seven year term but the judge treated the 18 months pre-trial custody as being equivalent to a three year sentence (cite from judicial decision on appeal) Of the four year sentence, Stone served just over two years and while now free is appealing the original sentence in the Supreme Court of Canada. What is clear from these requests for reviews of procedure and tougher responses from the judiciary, is that the courts are not treating violence against women in relationships seriously, are not imposing deterrent sentences and that the federal justice minister and BC's Attorney General are both aware and concerned about this situation.
Recently the Canadian Criminal Justice System introduced reforms aimed at transforming the way it views and treats crime. At the core of these new reforms is a restorative justice philosophy which is concerned with repairing the harm done to victims and the community through a process of negotiation, mediation, victim empowerment, and reparation. This restorative approach to crime is in contradiction to the current retributive criminal justice approach which is generally viewed as being focused on public vengeance, deterrence, and punishment through an adversarial process. On September 3, 1996, legislation was passed by the Federal Government incorporating this restorative justice philosophy into the Criminal Code by completely re-writing those sections that deal with how offenders are to be sentenced in Canada. Under this amendment, offenders are to be sorted into high-risk and low-risk categories on the basis of the seriousness of the offences they commit and their likelihood to re-offend.
For those offenders deemed high-risk and who have committed serious offences, judges now have two additional options. Under one option, offenders such as serial rapists and child molesters who repeat their serious crimes, can be declared "dangerous offenders." Once a dangerous offender is so designated, judges are now required by law to impose an indeterminate sentence, that is, a sentence with no expiry date. Even when sex offenders do not meet the dangerous offender criteria, but are still at risk of re-committing sexual offences, it is now possible, to designate such persons as "long-term offenders." This means that these offenders can be subject to supervision for up to ten years following their release from prison.
On the other hand, offenders in the low-risk category-usually but not always first time, non-violent offenders-are, under the new amendment, eligible for diversion out of the traditional court system into alternative measures, meaning that these individuals will now serve their time in the community with restrictions similar to those of probation rather than jail. This diversion can occur at any one of three stages in the criminal justice system: sentencing, pre-trial, or pre-charge. Previously, the Criminal Code contained no provisions for alternative measures. Now each province is permitted to set up and administer its own alternative measures for adults.
"Conditional sentencing" was a new sanction added to the Criminal Code under the September 1996 amendments. If a judge is satisfied that serving a sentence in the community would not endanger the safety of the community, that there is no statutory minimum sentence for the offence, and that if the jail term for the offence that would otherwise be imposed would be less than two years, the offender can qualify for a conditional sentence. Certain conditions will be attached to such a sentence, similar to those conditions currently found in probation orders, aimed at ensuring the offender keep the peace, not re-offend, maintain good behaviour, and in many cases get what is deemed by the courts as "appropriate treatment." At the same time as giving a conditional sentence, the judge will impose a jail term but then suspends it as long as the offender fulfills the conditions ordered by the Court. Herein lies the attraction of this new sanction for judges-the assumption that if the offender fails to carry out the terms set by the conditional sentence, in part or in full, they can be brought back to court, have the suspension of the jail sentence cancelled and then be sent to jail for the remainder of the sentence. The amendment further holds that while the judge can feasibly impose new conditions on the offender or reinstate the suspension, this can only be done after the offender has served a specified amount of time in custody.
In a condemnatory review of conditional sentencing, a three-judge panel from the Alberta Court of Appeal in January 1998, found that increasingly judges are automatically granting conditional sentences whenever the minimum requirements are met, regardless of whether or not the offenders are likely to obey the conditions (see Jenkins 1998:A1; Fitterman 1998:A1) This finding coupled with the justifications usually offered by both the federal and provincial governments for introducing sentencing reforms in the first place, namely the high costs of prosecuting cases through the courts and providing for an increasing prison population, certainly raises the question of whether failure of compliance will really be strenuously pursued.
Many other questions have been raised about the use of conditional sentencing, especially in cases of sexual assault of women and children and cases of violence against women in relationships (VAWIR). While it was not the intent of the September 1996 Criminal Code amendments to allow for the use of conditional sentencing in these cases, the fact that many sentences for sexual assault, child sexual abuse, and violence against women in relationships normally are only for two years less a day, means that in all of these cases conditional sentencing is an option for the sentencing judge. And despite assurances from the BC Ministry of Attorney General that "it remains the policy of the criminal justice branch to prosecute allegations of sexual assault vigorously" (Ministry of Attorney General 1998b) the recent release of Bishop Hubert O'Connor, who spend only six and one-half month in jail for rape and indecent assault of two First Nations girls at a residential school, after he apologized for his actions, seriously questions whether this is in fact will be the case (see McLintock 1998:A1; Fournier and McLintock 1998:A14; Fournier 1998:A24).
The panel from the Alberta Court of Appeal raised another issue
concerning conditional sentencing which is particularly relevant
when this sanction is used for cases involving violence against
women: whether or not a conditional sentence can be an effective
deterrent. As Alberta Chief Justice Catherine Fraser has queried:
"It is questionable whether conditional sentences generally
have much more deterrent value than suspended sentences."
The Chief Justice added that when "Properly used and carefully
crafted, a conditional sentence will serve its intended purpose.
[However,] improperly used or skimpily drafted, it will undermine
respect for the law. Like all tools or instruments, it is to
be used in the right situation, not the wrong situation"
(Jenkins, 1988). Cases involving violence against women are the
"wrong situation" in which to use conditional sentencing.
4.
Total cases recommended to Crown
in January and June of 1994 were 160, of which Crown proceeded with
charges in 138 (86%) and of these 37.7% resulted in stays of
proceeding (Holm 1994). Gill (1998) in her study of VAWIR cases from
the files of the Vancouver Police Department found similar percentages
of cases being stayed. For example, in January and June of 1997 the
number of incidents were 117 for each month, of which 85 in each month
were recommended for charges. Crown proceeded with charges in 89% of
the cases recommended in January and 93% in June. The stays of
proceedings were 46% for January and 45% for June. Only 7% of
the cases in January 1997 resulted in jail time and only 3% in
June.