Best Practices where there is Family Violence (Criminal Law Perspective)
6. Trial Stage
6.1 The Integrated Domestic Violence Court
In June of 2011, the Integrated Domestic Violence Court (IDVC) opened in Toronto with the goal of providing a more coherent and holistic approach to families involved in both the criminal and family justice systems. The court provides a single judge to hear both the criminal and the family law cases (excluding divorce, family property and child protection cases) that relate to one family where the underlying issue is domestic violence. The goals of this court include increased consistency between family and criminal court orders and quicker resolutions of the judicial proceedings. The court is located at 311 Jarvis Street in Toronto and sits twice a month. Participation in this court was initially voluntary; all parties had to consent before the family and criminal cases will be transferred. Beginning March 16, 2012, however, all domestic violence matters coming out of the Old City Hall court house in downtown Toronto will be scheduled at the IDVC where parallel family law proceedings exist.
The Honourable Justice Waldman explained the need for the integrated court this way:
Domestic violence or partner abuse is well recognized as a serious and complex issue. The response of the justice system, both family and criminal, is complicated by the fact that domestic violence often gives rise to myriad inter-related family problems involving safety and family separation. Legal proceedings are further complicated by the fact that the criminal and family cases occur separately. The two courts operate as independent silos with virtually no sharing of information between them and very little ability to communicate. This is particularly true in Toronto where the criminal and family courts are housed in separate buildings with a separate judiciary and little crossover by lawyers. The courts must rely on the litigants to provide necessary information. The family court judge has no independent means of obtaining a copy of a bail or probation order to ensure that the terms of a custody or access order does not conflict with the bail or probation terms. Family and child protection cases are often delayed by the progress of the criminal justice system. Families are in some cases precluded from attending counselling because of no contact terms in bail and probation orders. In some cases, litigants are reluctant to address certain important issues in the family case because of the potential impact on their testimony at the criminal trial (Waldman, 2010).
The court is modeled on similar courts operating in several states in the United States including New York, Vermont and Idaho. The court offers numerous potential advantages. The “one-family-one-judge” concept ensures that the presiding jurist has a far more complete picture of the family situation. As defence counsel Edward Prutschi explains:
Allegations of domestic violence can be better assessed and addressed in the context of the underlying (and frequently related) stressors that are part of the baggage of many family proceedings. There is the potential for substantial time savings and reduced court appearances which should translate into reduced legal fees for clients mired in the system. An integrated system also completely eliminates the common problem of inconsistent orders where the family court requires access and contact between the parties while the criminal court bail prohibits it (Prutschi, 2011).
Despite the evident advantages of the integrated court, it has had a slow beginning. Two developments may lead to increased participation at the court. First, as described above, appropriates cases will now be automatically scheduled in the IDVC. Second, where the criminal matter is going to proceed to trial, it will no longer need to be moved back to Old City Hall. Instead, the trial will be heard by a judge of the IDVC (although not the judge who managed the case up to the point of trial).
It is expected that more cases will be heard in the IDVC with the introduction of automatic streaming. Justice Bovard believes that some criminal defence counsel are uncertain about the practical benefits of the integrated court and are concerned that evidence that would not otherwise be admissible in the criminal matter will “seep in” through the family side of the process. In his view, defence counsel underestimate the value that an accused person places in keeping his family intact. Justice Bovard hopes that the IDVC will allow accused individuals to resolve criminal matters in a way that protects the family (Bovard, 2012).
6.2 Evidentiary Issues
One of the common complicating factors for prosecutors in domestic violence cases is the frequency with which complainants recant or become uncooperative – not uncommonly because of the cycle violence and intimidation present in abusive relationships. Issues may also arise at trial because of delays in reporting.
A number of evidentiary tools can assist in effective prosecution of allegations of family violence.
6.2.1 Reluctant and Recanting Witnesses
Given the dynamics in which domestic violence occurs, it is not unusual for a complainant to be reluctant about testifying or to recant earlier allegations. Crown counsel should carefully consider these recantations – they may be truthful and sincere or they may be the product of intimidation and coercion.
Enhanced evidence gathering procedures may allow the prosecution of the accused to continue notwithstanding the recantation of the complainant. The Crown Policy manual in Ontario provides that where available and relevant, the following evidence should be included in the Crown brief:
- Audio/video tapes and transcripts of the complainant’s statements
- 911 tapes and transcripts
- Photographs of the complainant’s injuries
- Photographs of damage to the scene of the incident
- Medical records, relevant waivers and notices under the Canada Evidence Act
- Statements of witnesses, including children and neighbours
- Similar fact evidence
- Previous relevant convictions and occurrence reports
- Statement of the offender
- Any res gestae statement of the victim (Ministry of the Attorney General (Ont), 2002)
The involvement of victims’ services may assist complainants to continue their participation through the court process. Where a witness is reluctant to testify, Crown Counsel should attempt to ascertain the reasons for that reluctance. If a witness has been subjected to threats or interference, Crown Counsel should refer the matter to the police for investigation and protection.
Where a complainant fails to attend court in answer to a subpoena, Crown counsel should make reasonable efforts to find out the reason for the failure to appear. The Newfoundland Crown Policy Manual suggests that on the basis of the information in respect of the failure to attend, the Crown’s knowledge of the complainant’s personal circumstances and the seriousness of the offence, Crown counsel should consider the following options:
- Requesting an adjournment where the complainant’s evidence is crucial to the case and the absence is unlikely to be repeated (e.g. where the complainant is ill);
- Proceeding with the case where the charge can be proven through the evidence of other witnesses;
- Asking for material witness warrant where the complainant’s evidence is crucial, no information is available concerning the reasons for non-appearance and the offence is a serious one; and
- Terminating proceedings, where the offence is less serious, the alleged offender is not considered dangerous, and the complainant’s arrest would serve only to further victimize that person (Department of Justice (Nfld), 2007: 15-8).
These options are not exhaustive but provide some guidance on the issues to be considered by the Crown in the face of a missing complainant.
Crown counsel should also anticipate that a complainant may attend trial but refuse to give evidence or fail to testify as anticipated. In those situations, the Crown may consider:
- Seeking leave to show the complainant a prior police statement for the purposes of refreshing memory;
- Seeking leave to cross-examine the complainant on a prior inconsistent statement, pursuant to s. 9(2) of the Canada Evidence Act;
- Seeking leave to cross-examine the complainant as an adverse witness, pursuant to s. 9(1) of the Canada Evidence Act; and/or
- Seeking to admit evidence of a prior inconsistent statement as substantive evidence for the truth of its contents, pursuant to the Supreme Court’s judgement in R. v. K.G.B (Department of Justice (Nfld), 2007: 15-9).
Pursuant to the principles articulated by the Supreme Court in R. v. K.G.B., 1993,and subsequent cases, a complainant’s videotaped statement to the police may be admissible into evidence at trial, absent adoption by the witness, on proof of necessity and reliability on a balance of probabilities. The burden rests with the party seeking to introduce the evidence.
Necessity can be made out where a witness who testifies recants an earlier statement. The necessity criterion is to be applied flexibly. It may be met where evidence of the same value cannot be expected from the recanting witness (R. v. K.G.B., 1993)
Reliability will depend on whether:
- the statement was made under oath/affirmation following explicit warning re: criminal sanctions for making false statements;
- the statement was videotaped; and
- the opposing party has a full opportunity to cross-examine the declarant at trial.
Where the declarant is available to be cross-examined, the admissibility inquiry into threshold reliability is “not so focused on the question whether there is reason to believe the statement is true, as it is on the question whether the trier of fact will be in a position to rationally evaluate the evidence.” (R. v. Khelawon, 2006: para. 76)
6.2.2 Evidence of Prior Discreditable Conduct
There is a general exclusionary rule preventing the Crown from introducing evidence of discreditable conduct that falls outside the scope of the offence charged. The rationale for this rule was explained by the Supreme Court of Canada in R. v. Handy:
The respondent is clearly correct in saying that evidence of misconduct beyond what is alleged in the indictment which does no more than blacken his character is inadmissible. Nobody is charged with having a “general” disposition or propensity for theft or violence or whatever. The exclusion thus generally prohibits character evidence to be used as circumstantial proof of conduct, i.e., to allow an inference from the “similar facts” that the accused has the propensity or disposition to do the type of acts charged and is therefore guilty of the offence. The danger is that the jury might be confused by the multiplicity of incidents and put more weight than is logically justified on the ex-wife’s testimony (“reasoning prejudice”) or by convicting based on bad personhood (“moral prejudice”): Great Britain Law Commission, Consultation Paper No. 141, Evidence in Criminal Proceedings: Previous Misconduct of a Defendant (1996), at § 7.2.
Even where evidence of extrinsic misconduct is relevant to the facts in issue at trial, otherwise than by proof of disposition or bad character, it is still necessary to consider whether its probative value is sufficient to warrant admission when weighed against the very real potential for prejudice that such evidence invites. (R. v. Handy, 2002: para. 31)
Despite the general exclusionary rule, evidence of prior discreditable conduct or “bad character evidence” may be admitted in cases involving allegations of physical or sexual abuse in the course of an ongoing relationship.
In R. v. D.S.F., one of the seminal cases on prior discreditable conduct in the context of allegations of family violence, the Court of Appeal for Ontario explained that “courts have frequently admitted evidence of discreditable conduct to assist the court in understanding the relationship between the parties and the context in which the alleged abuse occurred.” (R. v. D.S.F, 1999: para. 20)
This type of evidence may be admitted for a number of purposes, including:
- to complete the narrative of the complainant's description of her relationship with the accused;
- to demonstrate the possible motive or animus of the accused in committing the offences alleged; and
- to bolster the credibility of the complainant by providing an explanation for her failure to leave the relationship and report the allegations of abuse earlier than she did.
The similar fact evidence rule is another exception to the exclusionary rule related to bad character evidence. It permits the introduction of evidence demonstrating uncharged misconduct on the part of the accused where, due to its particular characteristics, its probative value exceeds the prejudicial effect normally associated with bad character evidence.
In R. v. Handy, the Supreme Court of Canada explained the law of similar fact evidence and provided guidance to trial judges on how to determine whether the proposed similar fact evidence is to be admitted under a principled framework. At the core of this framework is a balancing between prejudice and probative value. The Crown bears the burden of establishing, on a balance of probabilities, that the probative value of the similar fact evidence outweighs its prejudicial effect. To meet that burden, the Crown must first identify a matter in issue to which the similar fact evidence is relevant.
In evaluating the probative value of the proposed evidence, the trial judge should consider:
- Proximity in time between the similar acts and the charged conduct;
- Similarity in detail between the similar acts and the charged conduct;
- Number of occurrences of the similar acts;
- The circumstances surrounding the similar acts;
- Any distinctive features that unify the incidents;
- Any intervening events; and
- Any other factor that would tend to support or rebut the underlying unity of the acts.
Even where proposed similar facts are probative, the trial judge must still guard against admitting evidence that is, on balance, overly prejudicial.
Where bad character evidence is admitted – as part of the narrative, to establish motive or as similar fact evidence – defence counsel should ensure that the trial judge instructs the jury in a manner that minimizes the dangers inherent in admitting extrinsic misconduct evidence. In R. v. Arp, the Supreme Court of Canada explained the danger that a jury will engage in prohibited reasoning is “avoided by the strict test for admissibility which ensures that the evidence is sufficiently probative to outweigh the risk of prejudicial misuse, coupled with a cautionary instruction against making improper use of the evidence.” (R. v. Arp, 1998: para. 74)
Specifically, the jury should be told that they must not use the evidence of the prior discreditable conduct to conclude or help them conclude that the accused is the sort of person who because of his bad character was likely to have committed the offence charged. They also ought to be instructed that, if they are convinced that the accused engaged in the prior discreditable conduct, they must not punish him for that conduct by finding him guilty of the offence for which is on trial (R. v. D. (L.E.),1989: 128).
6.2.3 Expert Evidence
Understanding the context in which an incident of spousal or child abuse occurs and is reported can contribute to a fair hearing and proper resolution of these cases. Although not appropriate in every case, Crown counsel may consider calling an expert in the field of domestic violence where:
- The trier of fact may not otherwise understand a delay in reporting the incidents or violence or other abuse;
- The risk to the complainant and/or the complainant’s family might not otherwise be appreciated; and/or
- The impact of the abuse on the complainant may not be apparent to a non-expert.
Delay in criminal proceedings can be frustrating for all involved parties and can have a significant impact both on the resolution of the criminal charges and in respect of parallel civil proceedings.
6.3.1 “Prejudice” Caused by Delay in the Criminal Context
Section 11(b) of the Charter guarantees that any person charged with an offence has the right to be tried within a reasonable time. Where a court finds that the period of delay to trial is unreasonable, the applicable remedy is a stay of proceedings.
The primary purpose of section 11(b) is the protection of the individual rights of the accused, in particular, the right to security of the person, the right to liberty, and the right to a fair trial. (R. v. Morin, 1992)
The secondary purpose of section 11(b) is a societal interest. Trials held promptly enjoy the confidence of the public. Further, the failure of the justice system to deal fairly, quickly and efficiently with criminal trials inevitably leads to the community’s frustration with the judicial system and eventually to a feeling of contempt for court procedures (R. v. Morin, 1992; R. v. Askov, 1990).
The interests protected by the right to a trial within a reasonable time are liberty, security of the person, the presumption of innocence and the right to a fair trial. In terms of liberty, the concept of trial within a reasonable time is designed to prevent unduly lengthy limitations on freedom of movement due to restrictive bail conditions. As well, security of the person is to be guarded as jealously as the liberty of the individual. The concept of security of the person encompasses protection against overlong subjection to vexations and vicissitudes of a pending criminal accusation. These include stigmatization of the accused, loss of privacy, stress and anxiety resulting from factors such as possible disruption of family, social life, and work, legal costs and uncertainty as to outcome and sanction. Accused persons should have the chance to defend themselves and to have their names cleared and reputations re-established at the earliest possible time (R. v. Morin, 1992; R. v. Askov, 1990).
In assessing whether a delay is unreasonable so as to warrant a remedy, the Supreme Court has stipulated that courts are to examine and balance the following factors:
- the length of the delay
- waiver of time periods
- the reasons for the delay, including
- inherent time requirements of the case
- actions of the accused
- actions of the Crown
- limits on institutional resources
- other reasons for delay, and
- prejudice to the accused.
The restrictive nature of the bail conditions that typically appear in domestic violence cases and the impact of those conditions on the accused and his or her family will be considered in assessing the prejudice caused to an accused by delay. The case of R. v. Campagnaro is illustrative.
Case Study – R. v. Campagnaro,  O.J. No. 1529 (C.J.)
Mr. Campagnaro was charged on April 13, 2003 with a domestic assault in which it was alleged that he caused bodily harm to his wife. The trial judge found that he did everything he could to move the matter forward quickly, but the system was unable to offer a date for trial earlier than one year after the incident.
The facts in Campagnaro were described by Justice Pringle as follows:
Mr. Campagnaro surrendered himself to the police on the morning of the allegation, April 13, 2003. He spent two days in custody before being released with the consent of the Crown on April 14. The terms of his release included conditions often found in a domestic bail, including conditions that he have no contact with the complainant and that he not attend at the family home. He retained Mr. Metzler on April 15.
Mrs. Campagnaro also retained independent counsel in order to express her wish to resume cohabitation and family counselling with her husband. Although the Applicant continued to support the family financially, in the absence of her husband Mrs. Campagnaro was left alone to look after her four children ages 14, 12, 6 and 4, as well as the two year old that she and the Applicant had together. After investigating the request to vary the bail to permit contact between the parties, the Crown refused to consent to a bail variation.
The Applicant was (correctly) advised by Mr. Metzler that the earliest trial in the Metro North jurisdiction would likely be many months in the future. Distraught at the prospect of not seeing his wife for that period, and being concerned that his relationship and family connection would fall apart in the interim, the Applicant obtained a bank loan in order to bring a bail variation application in the Superior Court. This application was successful, and on May 29, 2003, his bail was varied to permit him to resume living with his wife, and to continue counselling with her.
On July 2, 2003, a trial date for the following April was set. No earlier dates were available.
While acknowledging that the case fell “near the margins of what is constitutionally acceptable” in terms of delay, the trial judge concluded that the significant prejudice caused to Mr. Campagnaro mandated a stay of proceedings.
Justice Pringle described the prejudice as follows:
As a result of the charge, the Applicant was required to move out of the family home and have no contact with the complainant. I do not question the reasonableness of those conditions, or even the decision of the Crown in refusing to consent to a bail variation. However, it is obvious that even reasonable bail conditions may give rise to hardship. In this case, the strictness of the bail conditions gave rise to the Applicant's natural concern about how long this state of affairs would last before he could have his day in court. Unfortunately, the answer in this jurisdiction was many months. This in turn led to the conclusion that he would have to bring a bail review in Superior Court in order to vary his bail. In the Applicant's particular circumstances, this was a financial hardship but a necessary one in order to assist his family and work on his relationship with his wife. It is fair to say that the prejudice of the restrictive and divisive bail conditions was minimized by the successful application for a bail variation in this case. At the same time, it is unacceptable that the wait for a trial date was so far in the future in this court that the Applicant's family life, his relationship with his wife and children were threatened by the delay. One year is a long wait indeed when the charge strikes at the heart of family life. The Applicant filed an affidavit in which he indicated that he, his wife and family felt that they had been living life under a dark cloud for the past year, and felt that they had been caught up in a force that they could do nothing about. Not surprisingly, the wait has put more stress on the relationship, and he and his wife have had difficulty moving forward with their lives.
In assessing the reasonableness of the delay, Justice Pringle noted that in cases involving allegations of domestic violence where the complainant wishes to reconcile with the accused, both the “complainant and society have a compelling interest in the speedy resolution of the charge too.”
The break up of the family unit, the “no contact” order of bail, the fact that the complainant was left as the sole caretaker with children: all these conditions have an inevitable effect on the family. Although the situation was remedied for this Applicant within six weeks, the interference in family life can take its toll on society at large when domestic assault trials are delayed.
In upholding the stay of proceedings, the Court of Appeal emphasized that the public interest in a trial on the merits applies equally to criminal allegations arising out of domestic disputes as to any other criminal allegation and that the result in the Campagnaro case should not be taken as setting a new constitutional timeline for cases involving allegations arising out of domestic disputes where the parties seek to reconcile. Cases involving allegations of violence in the family are to be considered on an individual basis, just like any other case. Nevertheless, the Court of Appeal noted that “where the institutional delay is on the edge of the constitutionally tolerable, the issue of prejudice will be central to the outcome of the s. 11(b) analysis.”
6.3.2 Delay and Child Protection Proceedings
Delay in the criminal proceedings causes significant concern where parallel child protection proceedings have been commenced. Child protection cases must be moved forward in a timely fashion, particularly where the children have been apprehended by the child protection authority and removed from their home pending the outcome of the proceedings.
Section 54 of the Child and Family Services Act requires that if a child has not been found to be in need of protection within three months of a protection application being brought before the court, the court shall set the case down for a hearing on the earliest date that is compatible with the just disposition of the application.
The CFSA also establishes time limits for the amount of time children can remain in care before being returned to a family or community member, or being made a permanent ward of the State. For children under the age of six, the time limit is 12 months; for children six and older it is 24 months. Child protection proceedings move quickly in order to satisfy these time lines and because resolution is in the best interests of the children. As Kate Kehoe explains, delay in the criminal proceedings can have a serious impact on the child protection side of the equation:
In cases where the accused does not plead guilty early in the criminal proceedings, the parents have reunited and the accused refuses to admit to the incident, there is a serious possibility that the family proceeding can lead to the permanent removal of the child from the family. Even relatively short delays in the criminal proceedings can lead to this result, as once the criminal proceedings are resolved, the parents must then take steps, such as counseling and substance abuse treatment, to assure the court that the violence will not reoccur. These programs can take many months and there is often relapse in substance abuse treatment (Kehoe: 6).
Counsel representing parents in child protection proceedings who have also been charged criminally emphasize the importance of communicating with criminal defence counsel. Tammy Law, former counsel for a children’s aid society and now a sole practitioner whose practice focuses on child protection matters, indicates that a criminal conviction for child abuse will have, not surprisingly, a negative impact on parallel child protection proceedings. Nevertheless, Ms. Law suggests that where an accused has decided to plead guilty to the criminal charges, the plea should be entered without delay so that the parent can take steps to demonstrate his or her rehabilitation, to enter into programming or counselling to assist in preventing further incidents and to make a plan for the care of the children (Law, 2012).
Delay in the criminal proceedings may also prevent parents from meaningfully participating in the child protection investigation and proceedings. A parent facing criminal charges may refuse to participate in a parental capacity assessment, for example, in order to avoid incriminating him or herself in the criminal proceedings. Unfortunately, non-participation will hinder the progression of the case in the child protection context (See Case Study above in Section 4.2). The judge is likely to draw a negative inference from a failure to comply with the assessments. Ultimately, the refusal to participate may result in the children remaining in care, and separated from their parent, for a longer period than would otherwise be the case.
 See practice directive.
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