Criminal Court Responses to gender-based violence
in Thunder Bay: Initial Findings
The Court Watch Project aims to observe and record data pertaining to how the Criminal justice system responds to cases involving gender-based violence. Since November 2021, the GBV Court Advocate and trained volunteers have conducted daily observation of virtual criminal court proceedings including bail hearings, overnight arrests, and plea hearings. Data collected includes offender and victim characteristics (age, gender, racial identity), charges, criminal history of the offender, and how the justice system players such as Defense Attorneys, Crown Prosecutors, Justices of the Peace and Judges respond to GBV cases. This research is motivated by the high rates of GBV in Thunder Bay.
To date, the court observations have confirmed that survivors of GBV are at a heightened risk of continued violence while their (ex) partner is released with bail conditions or a police undertaking. Extremely high rates of release, regardless of the severity of the charges and/or their past criminal history, places women at a high risk of continued victimization. Despite the clear patterns of system involvement failing to protect women, there is little response from the criminal justice system. The data collected on criminal court response aims to shed light on these issues and draw attention to gaps in the criminal justice system that continue to place women and their children at risk of ongoing violence. There are several junctures in this process that we have found that are putting women at continued risk of violence, which will be explored below:
One of the most significant causes for concern regarding the criminal court response to gender-based violence is the extremely high rates of release at the bail stage for gender-based violence offenders. “Bail” refers to the process of release after arrest and before a trial or a guilty plea. The court determines whether an offender will be held in custody until trial/plea or released with conditions. This decision is based on three items: whether \or not the individual will return to court when required, if the individual is a risk to public safety, and if the individual’s release will affect the public’s faith in the justice system.
The overwhelming majority of offenders charged with domestic violence related crimes are released shortly after their arrest. Ongoing research since November 2021 has indicated that 82% of offenders spend at least part of their time before trial/resolution out of custody. This puts survivors at extreme risk. Offenders cycle in and out of the court,: often being released, then assaulting or harassing their intimate partner, being arrested again, and then being released again, – the cycle continues on. Overcrowding of prisons and a system that prioritizes the offender over the victim has led to abusers getting a seemingly infinite number of chances to harm their intimate partners.
When abusive men are released after their arrest, they are released with bail conditions. These conditions vary little from case to case: all GBV offenders are released with a no-contact order that intends to protect the victim, which states that he is not permitted to communicate with her in any way. There are sometimes distance restrictions added onto these (i.e. that a perpetrator must remain X number of feet away from the victim); however, these are less common in our region – particularly in Northern communities, as the small size of these communities cause the court to be less inclined to require distance restrictions. To quote a defense attorney, this “sets [perpetrators] up to breach”. This causes terrifying situations for women, such as their ex-partner standing at the end of their driveway and staring at them, or running into them at community events or on public transportation.
Oftentimes, bail conditions sound effectual in theory, yet are near impossible to enforce. One example was a case of a young man charged with sexual assault, who received a bail condition to provide his technology and social media passwords to his elderly grandparents who were responsible for his supervision. However, there was little evidence that these grandparents were able to use control over this technology to prevent criminality or and enforce it fully. Further, we have observed an underuse of tools that are more preventative measures as opposed to reactive ones. In over one year of near-daily court observation, we have yet to see an ankle monitor be used in bail conditions involving curfew or house arrest. We must ask why the court is not using every available tool to keep women safe.
The reality of bail conditions is that they are broken extremely regularly. In the cases we observed, 92% involved some kind of previous breach, whether it was of probation or of bail conditions. This tells us that bail and probation conditions are not functioning to keep women safe.
The default bail supervision plan for gender-based violence offenders is the involvement of a surety. Sureties are adults in the alleged offender’s life who make a promise to the court to supervise the offender; sureties often live with or are connected to a perpetrator’s day-to-day life – such as a parent, grandparent, or partner – and are responsible for reporting any breaches to the court. Our court observation has shown that this tool is largely ineffective. Expecting a member of the public to wholly supervise a perpetrator on behalf of community safety is a flawed concept. Further, this tool is yet another example of reactionary measures to prevent GBV, instead of preventative. In an ideal scenario, the mere presence of a surety would be enough to deter offenders from breaching their bail conditions; however, sureties must sleep, work, and attend to their other responsibilities, illustrating that there is significant portion of time when sureties are not actively supervising the offender. This leads to continuous breaches of GBV offenders.
Prospective sureties are interviewed in court by the defense attorney, crown prosecutor and sometimes a Justice of the Peace. If the release of the alleged offender is consented to by the Crown, the interview is brief and surface-level. If the release is contested by the Crown, the interview is more in depth and intensive. In either situation, there is never any meaningful discussion of the nature of gender-based violence. Frequently, sureties make the implication that the issue is the relationship between the perpetrator and the victim, rather than the perpetrator’s actions or behaviours. There is also frequent insinuation that, if both parties were able to stay away from each other, the offender would no longer have reason to be violent. This attitude dismisses the inherent power dynamic in abusive relationships and implies that both victim and perpetrator are mutually responsible for the violence. As GBV advocates, we know this is not the case, as many perpetrators will act violently in multiple relationships throughout their lives. Ultimately, sureties are not required to have any understanding of GBV. Victim-blaming tendencies are not considered to be a red flag by the court, resulting in perpetrators being released to sureties who enable violence.
We have been evaluating sureties based on whether I believe they are capable of providing effective supervision. These judgments are based on items like GBV understanding, work schedule, and presumed authority over the offender. We found that only one-third of sureties demonstrated the mental and practical capacity to supervise successfully.
The concept of reverse onus was introduced into the criminal justice system in order to protect survivors of GBV while their abuser awaits trial or a plea. Reverse onus means that if an offender has breached his bail conditions and returns before the court on these new charges, it is his responsibility to demonstrate why he should be released, as opposed to the crown’s responsibility to show why he should be held.
While this sounds reasonable in theory, court observation has indicated that there is an extremely minimal difference in outcome when reverse onus is present. One example is that of BM, a man in his 20s, who had failed to comply with his bail conditions by contacting and assaulting his ex-partner three times, being released each single time despite “reverse onus” being present. It is apparent that this concept is only words and has no genuine effect on women’s safety.
The majority of gender– based violence cases do not result in a trial, because the offender pleads guilty. The court looks upon guilty pleas favourably, as pleading guilty appears to show accountability and saves the court the time and resources of holding a trial. However, the light sentences received by offenders who plead guilty indicates that this is simply a tactic to experience the lightest possible consequences for their violence. Most GBV offenders receive little to no jail time after sentencing and are merely sentenced to probation. Most often, the offender offers no apology, not to the victim or the court, and has nothing to say regarding their guilt. In this way, the court never receives any genuine evidence of the offender’s remorse. Meanwhile, their lawyers lecture the court on how remorseful the offender is, and how they have worked to rebuild their lives and have changed their ways.
60% of those who plead guilty are not sentenced to any jail time. Out of the cases we recorded, 100% of those who do serve jail time for violence served under a year.