Victims of Crime Research Digest, Issue No. 2, 2009

Bail and Breach of Conditions in Spousal Abuse Cases: Overview of Methods Used and Methodological Issues

by Nathalie Quann, Senior Research Officer

In June 2007, the Research and Statistics Division (RSD) initiated a research project on bail in Canada with the objective of examining concretely how the bail system deals with individuals charged with spousal abuse and whether there are differences between the treatment of spousal abuse offences and “non‑spousal” violent offences.

The results of this study will contribute to the discussion of a proposal to reform the bail system, in particular, to strengthen the reverse onus provision in subsection 515(6) of the Criminal Code, which was put forward by Manitoba's Minister of Justice in the fall of 2003. As a result of this proposal, a special sub‑committee on bail reform was struck within the Co-ordinating Committee of Senior Officials (CSSO) (Criminal Justice) FPT Working Group on Criminal Procedure. The sub-committee launched a comprehensive review of the system, which had not been done since the Bail Reform Act[1]came into force in 1972. This sub‑committee examined a number of aspects of bail (release by the police, judicial decision to release, breach of a condition of bail, sureties, amendment and revision mechanisms, bail pending appeal and extraterritorial issues) and submitted a list of 25 recommendations to the CCSO in April 2006.[2]  One recommendation proposed examining the procedural implications of implementing the reverse onus. This research project took shape as a result of this recommendation.

This article highlights the methodological approach used as well as the various issues and challenges encountered to date. Given that data are still being collected, it is not possible to present the results of this research, even preliminary results, at this stage.

Methodology

Given the gaps in national data on how police services and the courts deal with spousal abuse cases, the methodological approach chosen was a multi-site study in order to have access to the maximum amount of information on the files of individuals charged with spousal abuse and on release and conditions of release. It is understood that this will not be a national study, but the wealth of data will lead to a better understanding of the problem.

With respect to definitions, spousal abuse was defined as

“acts of physical violence between married, separated, divorced or common-law spouses or individuals in an intimate relationship (“girlfriend”/“boyfriend”)”; 

and non-spousal violence as

“acts of physical violence between members of the same family, acquaintances or strangers”.

Physical violence was chosen since it is the type of violence most likely to be reported to police. A list of 27 offences in the Criminal Code comprising all the offences against the person set out in the Criminal Code as well as some offences linked to spousal abuse, i.e., sections 72 (forcible entry), 177 (trespassing at night), 348(1) (breaking and entering with intent, committing offence or breaking out) and 811 (breach of recognizance under section 810) were included in the definition of physical violence.

In an attempt to be representative of the Canadian population, a total of six sites were selected by the team in charge of the project to reflect the Canadian regional reality as much as possible. The Atlantic region (Fredericton), the provinces of Quebec, Ontario, Manitoba (Winnipeg), British Columbia (New Westminister), and the Yukon Territory were part of this study. Since some research agreements are not finalized, it is not possible to specify the city that was studied in certain provinces and territories.

A sample of 350 adults charged with spousal abuse between January 1 and December 31, 2004, was selected, and the data for each site will be compared to a sample of 350 adults charged with non-spousal violence in the same year. Case selection was based mainly on police data, which generally have an indicator showing the nature of the relationship between the accused and the victim or an indicator of “spousal abuse.”  With a specific list of the Criminal Code sections and the “spousal abuse” indicator, the criminal records sections of police services were able to quickly identify the adults charged with spousal abuse in 2004 and facilitate access to that data. This list was subsequently used to code the police reports as well as the court files, once a research partnership agreement with the appropriate authorities was signed. This agreement, signed by the Director of the Research and Statistics Division, thoroughly and precisely sets out all the terms and conditions of the project as well as the commitments made by division employees regarding ethics and privacy.

Finally, the year 2004 was chosen for this project to allow for enough time to have elapsed and the files to be closed, and to examine the issue of recidivism subsequent to the initial offence. However, the fact that the files were likely to be archived presented some challenges in terms of accessing the data.

A study of this size presents certain challenges and methodological issues, which will be addressed below.

Methodological Issues

Privacy

With the advent of the electronic age, ethical considerations related to privacy have become critically important in recent years. Federal and provincial legislative provisions as well as internal policies and procedures in this area required the researchers to specify the parameters of the use and destruction of the confidential data collected. It was, therefore, appropriate to develop an approach for the project that complied with local laws.

Accordingly, the RSD developed a research partnership agreement that identified the purpose of the project, the specific use of the data, the reasons why the confidential data was necessary, and all the measures that would be adopted to protect the privacy of the individuals included in the research. This agreement was prepared by the project analyst and signed by the Director of the RSD and the person in charge of the service where the data would be collected. This crucial step in the research project is sometimes long and demanding because both parties have to consult internally to ensure that clauses that are mandatory for their organization are included.

It was clear to both parties that the research project could not reasonably be accomplished unless the Department of Justice Canada had access to personal information that could be matched to the data from police, court, and Crown files. Thus, the research agreement specified that the confidential information must

  1. only be used in aggregate form once record linkage is completed;
  2. not harm the individuals who are the subject of this information; and
  3. result in benefits that are in the public interest, since the results of this research will be used to address the issue of bail reform.

Agreements between the RSD and the individuals who would have access to the data were also required so that the organizations providing access to the data would have an additional guarantee that both the RSD and its representatives would strictly respect privacy. Since RSD staff members as well as contractors were likely to encode or manipulate data at some point during the project, the research partnership agreement specified who would have access to the data, and a confidentiality agreement was signed between the RSD and the contractors hired to encode and enter data. These “third party” agreements ensure that all the individuals and organizations involved in the project recognize the importance of privacy.

Finally, it is important to note that how the confidential data was to be used was specified in the research partnership agreement, where it was agreed that the data would be collected for linking between the various sources or databases and that anonymity was required in the analysis. In addition, a plan for storing the data was provided (secure server for the electronic files and locked filing cabinet for the paper files), and the schedule for storing and destroying the confidential data was set out, i.e., all electronic files and record linking files must be destroyed within a year of the publication of the study. Lastly, the research project was presented to the RSD's Research Review Committee (RRC) for comments and discussion, and it was then submitted to the Director of the RSD for approval. Ethical issues were addressed at the presentation to the RRC, and the project analyst had to respond to the 37 items in the ethics review model, an RSD document that is part of all the division's research processes. The sections in this document consist of questions about relationships with the participants, voluntary and informed consent, confidentiality and anonymity, personal information, harm, methodology issues related to ethics, preservation and destruction of data, links with the Department, with our areas of research and with the public. The RSD believes that these steps are essential to any research project that its staff conducts, and that they are an integral part of the RSD's research process.

Provincial, Territorial, Municipal Priorities

It is rare that a province, territory, or municipality does not want to collaborate in RSD's research projects. On the contrary, given the limited research capacity in some jurisdictions, the possibility of collaborating on a project that could potentially respond to certain issues or needs is greeted with enthusiasm. There is a great deal of interest in the research, and we see a genuine desire to collaborate to facilitate access to data and to meet the RSD's deadlines. However, the continuing reality is that the priority given to the research project is not necessarily the same for the host organization and the RSD. Since the provincial, territorial, and municipal governments are responsible for the administration of the criminal justice system, the research project is certainly not the first priority when they have to manage youth programs, police forces, and court registries, to name only a few. The RSD and its partners need to understand this reality and set flexible schedules that allow better management of delays. It is evident to the researchers that it is difficult, if not impossible, to produce research results for a project involving so many stakeholders in multiple jurisdictions in less than a year. There are too many uncontrollable variables in the equation. Patience is key, and it will certainly result in a strong collaboration between jurisdictions because the realities of some are better understood and accepted by the others.

Data Collection Problems

Every good researcher must clearly define the subject of the study and all related additional elements. That way, the parameters are clear, and the issues related to the subject of the study should normally be resolved quickly. However, where data collection depends on people outside the organization conducting the research, issues related to the definitions will surface: for example, what was defined as “spousal abuse” in this study was not necessarily defined as such in the databases of some provincial jurisdictions.

Therefore, we had to look closely at the definitions of the host organizations in order to better understand them and to better adapt their definitions to those established for the research project. Each jurisdiction collects data based on its needs and priorities; therefore, tremendous flexibility is required in order to adjust the data needs of the project to the existing databases in the sites included in the study. This can cause further delays in collecting data.

On the other hand, since the host organization extracts the sample and the data, it is crucial to ensure that the host organization completely understands the needs of the study and the related definitions. This helps to avoid problems during data collection, which is the most expensive part of a research project.

Conclusion

In every research project, it is important to show patience and flexibility both in the planning phase and the data collection phase. The priority that the organization responsible for the project gives to it may be very different from the priority that the host organization gives to it, and it is important to recognize and respect this if collaboration throughout the project is to be maintained. In addition, the relationships created or maintained with the various host organizations are crucial not only for the ongoing project but for future projects. Important lessons can be learned from the current collaborations in order to better work on such large-scale research projects in the future. We just need to demonstrate flexibility and transparency to conclude the research project and to obtain reliable and significant results on the subject under study.