Subject: The proposed amendments to the Crown counsel pro-charge policy.

Background:

The Ministry of Attorney General Criminal Justice Branch has presented a plan to amend the Violence Against Women In Relationships (VAWIR) Policy to grant individual Crown prosecutors greater discretion over the decision of whether charges should be laid. These changes would expand the powers of Crown prosecutors allowing them to divert cases and employ alternative measures as opposed to pursuing the strict criminal justice sanctions required by the VAWIR policy. Responses to the discussion paper are required by October 28, 2002.

The current policy requires Crown counsel to prosecute all cases of violence in relationships for which there is a reasonable likelihood of conviction and a prosecution of the accused is in the public interest. The current policy provides that 'diversion' should generally be considered inappropriate, particularly prior to charges being laid, given the concern of past or further assaults on the victim.' The proposed policy change will allow Crown Counsel to divert an accused prior to charge approval in cases considered low risk.

The rationale for the current pro-arrest/pro-charge policy is that it provides long term protection for victims and sends a strong social message that violence in relationships is not tolerated, despite the reluctance of many victims to proceed with prosecution in the short term. National and local research demonstrates a significant increase in arrests, enhanced victim satisfaction, and improved victim safety since the implementation of pro-arrest/pro-charge policies 20 years ago.

This type of policy is based on the understanding that violence in relationships involves dynamics particular to this type of crime. The policy recognizes, for a variety of complex reasons, the decision to arrest and charge is one that victims are not in a position to make. These reasons may include victims' fear of reprisal; hope that their relationship is salvageable; financial dependence on abusers, lack of self-worth and ability to support themselves; concern for their children; and isolation from supporting family and friends. Current research demonstrates that these dynamics are still prevalent in cases of violence in relationships.

The policy was also implemented because the criminal justice system, at both the police and Crown counsel level, was found to be unduly lenient with relationship violence offenders. Therefore, the policy significantly reduces the level of police and Crown discretion over the arrest and charge decision.

Discussion:

Research demonstrates that pro-arrest/pro-charge policies have improved the effectiveness of the criminal justice response to violence in relationships. For example, one key objective in the adoption of pro-arrest, pro-charge policies is to overcome officers' reluctance to arrest. National and local research has demonstrated a significant increase in arrests and recommendations for charges since the implementation of pro-arrest/pro-charge policies. This improvement is attributed to the fact that the policy compels officers to arrest in cases where there is evidence that an offence has taken place, but also because police are more likely to arrest when they are confident charges will be laid at the Crown Counsel level. Research has also demonstrated the impact of pro-charge policies on charging rates, where it has been found to significantly increase the consistency and frequency of criminal charges.

Despite the fact that the policy changes are directed at the Crown counsel charge approval level, there is evidence suggesting such changes would affect police practice. It has been noted that police feel their role must be coordinated with, and supported by, aggressive prosecution. When officers believe that Crown counsel and the courts do not take relationship violence cases seriously, this perception affects police practice. Research in British Columbia notes that police are less likely to arrest when they feel there are bureaucratic or technical impediments to obtaining a conviction and it is presumed the case will fail in the prosecutorial stages. Despite the mechanisms already in place to control police practice, it can be concluded that the possibility of diversion will directly impact arrest rates since police officers will feel less compelled to arrest if they believe the case is unlikely to result in criminal charges and conviction.

With regard to the prosecution of relationship violence cases in B.C., the provincial government has suggested that because of the high rate of cases ending in a stay of proceedings, we can infer the policy is not meeting its objectives. National and local research suggests that the high level of stays identifies the need for increased resources supporting the prosecutorial process, rather than enhancing the mechanisms by which to avoid criminal prosecution.

First, there is empirical data demonstrating that with adequate resources, victimless prosecutions can have a high success rate. When prosecutors are specifically trained to specialize in relationship violence prosecutions, and investigative resources are enhanced at the police level, victimless prosecution has been the preferred alternative in some jurisdictions and has been found in several jurisdictions to be as successful as prosecutions involving victims.

In terms of local evidence, the Vancouver Police Department Domestic Violence and Criminal Harassment Unit illustrates a model where coordinated, flexible, and thorough support of women can reduce the rate of stays of proceedings. The DVACH Unit case study revealed that the rate of stays decreases by half when the unit is involved. This effectiveness can be attributed to both improved investigations, which decreases the reliance on victim participation, and to the additional support provided to victims, which increases their likelihood of voluntarily participating.

The second point is that increased coordination between police and community services, increased faith in the criminal justice system, and a greater sense of empowerment throughout the criminal justice process, leads to increased victim participation in the prosecutorial stage. Overall, the research indicates the system needs to increase the specialization of relationship violence prosecutions, and provide support and certainty to women so they are less reluctant to participate.

Along with increased arrest and charging rates, pro-charge policies have satisfied other measures of policy effectiveness. The evidence from existing evaluative research indicates pro-arrest and pro-charge policies, supplemented by cooperative efforts within the criminal justice system and victim-serving agencies, produce the best results in terms of victim safety and reduction of recidivism.

In terms of recidivism, no other intervention has been found to work more effectively than arrest and rigorous prosecution. Research has pointed to the possibility that proactive relationship violence policies are having an impact on the overall trends of violence against women. In terms of rates of violence against women in Canada, in 2001, Statistics Canada reported a decrease in rates of violence against women in relationships and femicide in British Columbia over the past 5 years. Despite the fact that rates of violence against women are still unacceptably high, this decrease demonstrates that a certain level of effective intervention is taking place. In light of the research supporting pro-charge policies, and given the lack of evidence that alternative measure leads to comparable results, moving away from the current policy will likely increase recidivism and increase the risk of violence against women.

In addition to violence statistics, one of the most important measures of the effectiveness of any relationship violence policy is its impact on victims' sense of safety and empowerment. Since the inception of pro-arrest/pro-charge policies across Canada, the needs of victims have remained the same. Victims require:

• Consistency within the criminal justice system;
• Coordination among aspects of the criminal justice process;
• Respectful response by criminal justice authorities;
• Pro-active intervention by criminal justice authorities;
• Full information disclosure and provision;
• Efficiency in the system; and
• That the system take a strong stand on violence against women

Victim satisfaction studies have consistently found higher rates of satisfaction following implementation of pro-arrest, pro-charge policies. Several recent studies of victims of relationship violence in British Columbia, found that, overall, victims are supportive of proactive criminal justice policies. The research in British Columbia indicates certain factors leading to victim empowerment, and among those factors, a pro-active criminal justice approach was vital. Victims asserted they felt the greatest safety and empowerment when vigorous steps to ensure victim safety were taken, and the policy was consistently implemented. In other research, lack of action by the criminal justice system and inconsistency in implementation of criminal justice interventions have been reported as primary sources of their dissatisfaction with the system. The possibility of diversion creates a situation whereby interventions and sanctions become unpredictable thus contributing to risk of recidivism, victims' having a lack of faith in the system, and lack of willingness on the part of victims to participate in future prosecutions.

In Canada, there have been insufficient empirical evaluations to demonstrate that alternative measures offer positive results in terms of recidivism, deterrence or victim satisfaction and empowerment. Furthermore, there is a lack of evaluations examining the perspectives of victims of violence while using a victim-centred methodology and an analysis sensitive to the needs of victims. The limited research that does look specifically at victims' experience with alternative measures points to a high level of victim dissatisfaction. Without any clear evidence that diversion provides positive outcomes in terms of the short and long term safety of the victim, and the rehabilitation of the offender, moving away from a criminalization approach presents substantial risks to women victims of violence.

In addition to diverting a case to alternative measures, the Ministry of Attorney General discussion paper states that, 'Crown Counsel can consider the option of a s. 810 recognizance ("peace bond") when there is sufficient evidence for it, even if there is not sufficient evidence for a criminal prosecution.' However, research indicates that most offenders do not fully comply with the conditions of their peace bond, and the likelihood of re-assault is very high. For example, an Abbottsford study found a 40% re-assault rate when peace bonds were employed. With this high rate of violent recidivism, if the Ministry of Attorney General is supportive of this form of intervention, significant steps will need to be taken in order to ensure victim's safety. In addition, the Ministry of Attorney General will need to take steps to ensure that, in cases where evidence seems insufficient for a charge, the investigation was thorough and conclusive that more evidence is not available.

Research supports enhanced victim services and specialized prosecution units as effective strategies for reducing stays of proceedings and increasing victim safety, rather than increased use of diversion. Granting Crown Counsel the power to divert these cases will increase victims' risk of future violence and will fail to deliver a clear message that society does not tolerate these crimes. Such a change will also increase the liability of cities and the province when they fail to protect victims of violence.

Based on the available research, we submit that it is likely the changes will have a negative impact in the following ways:

• Fewer victims will contact the police for protection;
• Victims will feel less safety and empowerment throughout the criminal justice process;
• Arrest rates will decrease, leaving victims in high risk situations;
• Criminal justice interventions will become less consistent, and as a result, society will receive the message that violence in intimate relationships is not always considered a crime;
• Diversion may be used in cases where, in fact, a more rigorous investigation was needed;
• Recidivism rates will increase and victims will be re-victimized; and
• Police and Crown will face increased liability
• Higher costs to the justice system

Position of BC Institute Against Family Violence

We share the Ministry of Attorney General's commitment to safety in the family. We wish to work with the Provincial Government to promote healthy relationships, enhance the safety of members of relationships, and improve the efficiency and effectiveness of the criminal justice system. An analysis of current literature suggests, however, that revocation of the existing pro-charge policy in favor of diversion may threaten the positive advances made as a result of consistent application of the pro-charge policy. In support of our mutual commitment to public safety, we offer the following strategies to assist the Ministry of Attorney General reduce risk to family members, reduce offender recidivism, and ultimately reduce costs to the criminal justice, social, and health care systems.

Based upon the review of current literature, the BC Institute Against Family Violence recommends that:

• The Ministry of Attorney General reconsider any plans to amend the pro-charge policy
• Any future plans for changes to the policy involve an extensive justice system and community consultation process;
• The Government of BC enhance support services for victims of violence in relationships in order to reduce stays of proceedings and increase victim safety;
• The Ministry of Attorney General establish specialized domestic violence courts;
• The Ministry of Attorney General establish Crown counsel units that are specialized in the investigation and prosecution of violence in relationships offences; and
• If the Ministry of Attorney General proceeds with plans to increase diversion of minor cases of relationship violence prior to charge approval, the Ministry commit to tracking and evaluating the outcomes of such cases.