Law Times

lAw Times • April 19, 2010 NEWS PAGE 5 as the weak link in a criminal justice system it says is still fail- ing abused women. Th e Th under Bay Women's Court Watch Program released its second annual report re- cently on the fate of local do- mestic abuse cases proceeding through the criminal court. Debbie Zweep, executive di- rector of the Th under Bay shel- ter for abused women that runs the program, identifi es consis- tency as a major problem. "Th e biggest weakness in the criminal justice system rests in bail courts and with the justice of the peace," she says. "Th ere's a lack of consistent conditions coming out of bail court. Th ere are people that we know of who have breached 10 [or] 12 times and they come out with less conditions." Th e report found 58 per cent of men accused of domestic vio- lence were released on bail in 2009. In cases where volunteers who monitor proceedings for the program could identify a his- tory of domestic violence, that number shrank just a bit to 48 per cent. According to Zweep, inconsistency in bail conditions means there's no clear movement towards increasing sanctions for repeat off enders. Kevin Cleghorn, a Th under Bay family law practitioner, welcomes the report despite his concerns about the collection of data. Volunteers who moni- tor the courts are often inexpe- rienced in court procedure, he says, adding incomplete results sometimes lead to small sample sizes for some of the statistics. "It's useful to have scrutiny because it leads to accountabil- ity. It rightly leads to a discus- sion about what can be done to increase the safety of women and children." Queen's University law pro- fessor Nicholas Bala agrees that bail is a critical juncture in the system. But while the risk of family violence is highest in the period immediately after Courts still failing abused women: watchdog A BY MICHAEL McKIERNAN Law Times Th under Bay, Ont., court watchdog has identifi ed bail hearings a couple separates, he says family disruption, especially when children are involved, needs to factor in when con- sidering remand. Th e pre- sumption of innocence is also key, he adds. "Bail is the most important and also the most challenging stage. Because there is a lack of information, there's a need for immediate decisions, and it takes so long to have cases resolved." At the same time, he ac- knowledges the report's au- thors have a point when they question the role of justices of the peace in bail hearings. "Why do we have the most diffi cult decisions dealt with by the least senior, least-re- spected, least well-paid, and least-educated people in the system?" But Bala also points to complexity the of the is- sue, noting that when histori- cal complacency fi nally gave way to a recognition that too many women were dying at the hands of their partners in the late 1980s, policies failed to address the nuances in in- dividual relationships in which abuse is occasionally a two-way street and people can exagger- ate their claims. "We're slowly moving to- ward a more sophisticated un- derstanding. On the one hand, we have historically failed to protect women and chil- dren. But on the other hand, we mustn't overreact and say, 'Well, because he is charged, he must be guilty.'" In the meantime, inno- vations, such as specialized criminal court," she says. In October, the Minis- try of the Attorney General unveiled new family law leg- islation that strengthened restraining orders in Ontario and made them easier to ob- tain for people who aren't married to their partners. Breaches of an order can now be prosecuted as a criminal off ence. But while Zweep says the measures have yet to have an eff ect in her area, that could be due to delays in implementation. "We have some hope for 'Why do we have the most difficult decisions dealt with by the least senior, least-respected, least well- paid, and least-educated people in the system?' asks Nicholas Bala. domestic violence courts, have helped bring down the level of spousal homicide and abuse, Bala says. "We're doing a better job in protecting victims. Th at's de- monstrably true, but there con- tinue to be issues. But if you're a woman who has just been as- saulted by someone who's been released, then clearly doing better is not good enough." At the Th under Bay shelter, Zweep says the violence she sees perpetrated against wom- en has brought her to that very conclusion. "Th e system is defi nitely still failing women in regards to what we believe women have been promised by the attorney general compared with what we're actually seeing in the that. Our concern around re- straining orders in the past is that they're not really worth the paper they're written on, so we're hoping they'll be implemented in a diff erent way." Georgina Carson, chair- woman of the OBA's family law section, is more confi dent the measures will achieve their goals once they've taken full ef- fect. She says the new powers recognize the connection be- tween family law and domestic violence by giving civil orders criminal sanctions. In the past, breaches of a restraining order would bring both parties back to court for cumbersome con- tempt proceedings. "Now police have the ability to arrest someone for breach of a civil restraining order, and I think that's a signifi cant im- provement," Carson says. She notes the new legislation could even have a preventative eff ect on domestic violence as fewer spouses engage in confron- tations that can quickly escalate in the heat of the moment. "If that person knows there will be criminal consequences, there will be a chilling eff ect." But for now, Zweep is more worried about how much au- thorities are using the existing tools available to the criminal justice system. For example, a bail safety program designed to assess the risk posed by an accused is in place in Th under Bay, but Zweep says the courts have rendered it ineff ective. "What we don't see from the justice of the peace is any ques- tioning around the woman's safety. We know the bail safety program has been implement- ed, and the Crowns have that information, but we seldom hear the justices asking for it." Zweep also wants to see more emphasis on early inter- vention strategies for fi rst-time off enders. "Th e earlier we get him into that program, the more likely we'll see a positive outcome in changing his be- haviour," she says. Th under Bay's domestic vio- lence court advisory committee developed a partner-assault re- sponse program in 2004, but the watchdog report found it was rarely used in the early stages of criminal proceedings. Bala be- lieves such programs have an im- portant role as an alternative to simply increasing jail sentences. "Th ere are places in Canada where the program is brought in as a condition of bail," he says. "Ideally, what we want is [to] reduce the instance of do- mestic violence. Th ere is an im- portant place for jail, but what we want to do is try to help abusers to understand their be- haviours and not reoff end." LT Martin's Related Criminal Statutes 2010-2011 Edition Tried, tested & true Martin's Related Criminal Statutes, 2010-2011 Edition is fully annotated by three of Canada's preeminent authorities on criminal law. It includes updated statutes and related case law. Thoroughly cross-referenced and updated annually, Martin's Related Criminal Statutes contains a winning combination of insight and information. This latest edition provides annotations for 24 statutes, including: • • • regulations ORDER your copy today Hardbound • April 2010 • 1,536 pp. On subscription • $101 P/C 0637140000 One time purchase • $106 P/C 0637010999 ISSN 0710-1805 • • • and regulations … plus more than 2,500 cases using all relevant reported and unreported decisions delivered up to January 2010. Available electronically on CRIMINAL SPECTRUM and For a 30-day, no-risk evaluation call: 1.800.565.6967 LT0419 Canada Law Book is a Division of The Cartwright Group Ltd. Prices subject to change without notice, to applicable taxes and shipping & handling. Martins Related (LT 1-3x4)).indd 1 www.lawtimesnews.com 4/13/10 3:53:16 PM W ith annotations by Edward L. Greenspan, Q.C., The Honourable Justice Marc Rosenberg and Marie H non- Criminal Code enein Proceeds of Crime (Money Laundering) and Terrorist Financing Act International Transfer of Offenders Act Canada Evidence Act Sex Offender Information Registration Act Seized Property Management Act Security of Information Act

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