Victims of Crime Research Digest No. 10

Sentencing for intimate partner violence in Canada: Has s. 718.2(a)(ii) made a difference?Note *

By Isabel Grant

Isabel Grant is a Professor at the Peter A. Allard School of Law at the University of British Columbia where, over the past 30 years, she has specialized in various aspects of violence against women.

This article is drawn from a larger ongoing study examining the use of s. 718.2(a)(ii) of the Criminal Code, enacted in 1996, which directs judges to consider a spousal or common-law relationship between the offender and the victim as an aggravating factor in sentencing. The article will examine the history of the provision, the methodology of the larger study, the advantages and limitations of a case-law study and some initial findings about the sample of cases. While the study examines cases involving intimate-partner violence (IPV) committed by men and women, it is important to note that the vast majority (97%) of cases in the sample involve male offenders committing violence against female victims. Thus, while the study uses the term IPV, it is important to recognize that it is overwhelmingly about sentencing for male intimate-partner violence against women.

Background

Cases involving IPV “come before the courts in Canada with depressing regularity.”Footnote 1 Outside of the context of sentencing for homicide offences (see Grant 2010, Dawson 2016, for work on sentencing for intimate-partner violence sexual assault), there is very little recent legal academic work on sentencing for IPV (Crocker 2005, Du Mont et al. 2006, Beaupre 2015). Historically, IPV was seen as less serious than violence against strangers and was characterized as something private, within the family and not a legitimate cause for public concern. Courts were often more focused on keeping the family unit intact than on ending the violence. By the late 1980s, however, some Canadian appellate courts had begun to recognize that violence against women was even more serious when committed by an intimate partner precisely because it often takes place in the sanctity of the home, away from public scrutiny, and because of the profound breach of trust involved. In 1992, for example, the Alberta Court of Appeal made the following statement about sentencing for intimate-partner violence against women:

This court’s experience is that the phenomenon of repeated beatings of a wife by a husband is a serious problem in our society… [W]hen such cases do result in prosecution and conviction, then the courts do have an opportunity, by their sentencing policy, to denounce wife-beating in clear terms and to attempt to deter its recurrence on the part of the accused man and its occurrence on the part of other men… When a man assaults his wife or other female partner, his violence toward her can be accurately characterized as a breach of the position of trust which he occupies. It is an aggravating factor. Men who assault their wives are abusing the power and control which they so often have over the women with whom they live. The vulnerability of many such women is increased by the financial and emotional situation in which they find themselves, which makes it difficult for them to escape.Footnote 2

The enactment of s. 718.2(a)(ii) in 1996 represented a landmark recognition by Parliament that the existence of an intimate relationship must be considered an aggravating factor in sentencing. The Criminal Code made only a few aggravating factors mandatory, thus giving particular significance to a spousal relationship. No mitigating factors had ever been included in any Bill introduced into Parliament, although the 1996 legislation clearly envisioned both aggravating and mitigating factors. When the subsection was introduced, it read:

Other sentencing principles – A court that imposes a sentence shall also take into consideration the following principles:

  1. a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender, and, without limiting the generality of the foregoing, …
    1. evidence that the offender, in committing the offence, abused the offender’s spouse or child …

This provision was one component of a suite of legislation, which was introduced following public consultation with women’s organizations on issues related to violence against women.

In 2000, Parliament amended s. 718.2(a)(ii) of the Criminal Code; the word “spouse” was changed to “spouse or common law partner” and s. 2 defined a common-law partner as “a person who is cohabiting with the individual in a conjugal relationship, having so cohabited for a period of at least one year.” This amendment was part of wider omnibus legislation designed to end discrimination against same-sex partners. The provision was most recently modified in 2005, when the word “child” was removed and a distinct subsection (s. 718.2(a)(ii.1)) was added to address the abuse of a person under the age of 18 years. This change separated spousal abuse from abuse of a child, and created two separate, statutory aggravating factors.

The current Minister of Justice has been mandated to conduct a review of the principles of sentencing as part of a broader review of the criminal justice system. The present study seeks to inform this review. Part of the Minister’s mandate letter reads:

You should conduct a review of the changes in our criminal justice system and sentencing reforms over the past decade with a mandate to assess the changes, ensure that we are increasing the safety of our communities, getting value for money, addressing gaps and ensuring that current provisions are aligned with the objectives of the criminal justice system.

Methodology

This article reports on the progress of a larger study, which reviews the use of the aggravating factor in s. 718.2(a) (ii) since its enactment in 1996 with a view to determining its impact on sentencing for IPV. Sentencing is a complex and individualized process, and is difficult to analyze quantitatively. In many respects, sentencing is more of an art than a science.Footnote 3 While sentencing outcomes can be studied, it is particularly challenging to determine the influence that aggravating and mitigating factors have on sentences. The Canadian Centre for Justice Statistics’ Integrated Criminal Court Survey does not collect data on aggravating and mitigating factors. There is wide variation both in judicial approaches to sentencing and in sentencing outcomes. Thus, to study the impact of s. 718.2(a)(ii), a qualitative case-law review offers a better way to identify patterns and problems over a period of time. It is hoped that a review of the case law will reveal the extent to which judges have considered the aggravating factor defined in s. 718.2(a)(ii), whether the factor has had a meaningful impact on actual sentencing outcomes and whether it has led courts to take a more nuanced and gendered approach to sentencing for IPV.

A case-law study has inevitable limitations. Not all sentencing decisions result in written reasons, for instance, and not all written reasons are published. Furthermore, judges do not consistently cite s. 718.2(a)(ii). Some cases specifically cite the section’s aggravating factor and use it to conclude that, in the context of IPV, deterrence and denunciation must be the dominating objectives in sentencing. Other cases reach the same conclusion about deterrence and denunciation in the context of IPV, but do not mention the aggravating factor set out in the Criminal Code. It is also very difficult to determine exactly how much weight a judge gives to any particular aggravating factor, because judges weigh aggravating factors in a holistic way rather than factor by factor. Judges rarely indicate in their reasons, for example, what the sentence would have been had the crime taken place outside of the intimate-partner context.Footnote 4 Rather, sentencing brings together a wide range of circumstances of the offence and the offender, which makes each case unique.

This study examines only one part of the criminal justice system: sentencing after an offender has pleaded guilty or been convicted at trial. The study does not purport to shed light on other processes, such as charging or prosecutions, and does not purport to present new data on IPV as a phenomenon.

The study relies on a sample of cases drawn from Westlaw, QuickLaw and CanLII. The sample includes:

  1. All of the 82 published appellate decisions between 1996-2016 that mention s. 718.2(a)(ii). These include cases that mention a statutory aggravating factor in the Criminal Code but do not specifically cite s. 718.2(a)(ii).
  2. All 71 published trial decisions from 1998, 2007 and 2015 that mention s. 718.2(a)(ii). These include cases that mention a statutory aggravating factor in the Criminal Code but do not specifically cite s. 718.2(a)(ii).
  3. Several additional trial-level decisions from other years that shed light on particular interpretive issues.
  4. As a point of comparison, 122 additional appellate sentencing cases that deal with IPV, but do not reference s. 718.2(a)(ii), will be briefly discussed.

The focus of the study is the 153 cases described in (i) and (ii), and the tables presented below focus on these cases. The sample includes decisions written in either official language and from all provinces and territories. The crime of murder was excluded because the only discretion a trial judge has in sentencing is to set the period of parole ineligibility period for second-degree murder, and because other work has examined s. 718.2(a)(ii) in sentencing for intimate partner murder (Grant 2010). There is no overlap in the appellate and trial decisions, and the total number of cases and offenders is 153; the total number of victims is 158 because in four cases, the offender was convicted of offences against more than one intimate partner.

Offence and offender characteristics

While this is not a quantitative study, a number of observations about the sample can be made. Cases citing the section included those involving legally married spouses, common-law spouses and dating relationships, as well as couples formerly involved in one of these relationships. There were also a number of cases involving married spouses who had separated but were still legally married. The following table illustrates the relationships found in the sample.

Table 1: Relationships between the Offender and the Victim at the Time of the OffenceFootnote 5
  Current Former Total
Married 36 (24%) 10 (7%) 46 (31%)
Married but separated 9 (6%) 0 (0%) 9 (6%)
Common-law 55 (36%) 21 (14%) 76 (50%)
Dating 16 (10%) 6 (4%) 22 (14%)
Total 116 (76%) 37 (25%) 153 (101%)

The vast majority of the 153 offenders at both the trial and appeal levels were male: 150 male (98%) and three female (2%). One of the 150 cases involving male offenders involved a man charged with criminally harassing his former male partner. Thus in total, 149 or approximately  97% of the cases sampled in this study involved male violence against current or former female intimate partners. In one of the cases involving a female offender, the offender was charged with killing her abusive spouse, thus also implicating male violence against women.

Eighteen of the offenders in the sample, or just under 12%, were Indigenous, including two of the three female offenders. A number of the complainants appeared to be Indigenous, but this fact was not often mentioned specifically. Appeal cases outside the sample (i.e. those that do not cite s. 718.2(a)(ii) revealed that where s. 718.2(e) was at issue, the reasons for the sentence assigned less significance to the intimate relationship. There were 51 first-time offenders (33%) and 53 offenders (35%) with prior records for domestic violence – including 32 offenders previously convicted of violent offences against the same complainant. The rest of the offenders had records for unrelated offences. Even among first-time offenders, some cases involved abuse that took place over a significant period of time, but was only just coming to light.

The offender’s abuse of alcohol was a significant factor in a large number of cases. In 55, or approximately 36% of all cases in the sample, the offender was intoxicated at the time of the offence. A combination of drugs and alcohol was sometimes referenced by the court, but all but one of these 55 cases included reference to the offender’s alcohol consumption. Two of the three female offenders were intoxicated at the time of the offence. In a smaller number of cases, the complainant was also intoxicated, but this could not be quantified because relevant information was not always included in the judgments.

In many cases in this sample, very serious violence was inflicted on the victim and in eight cases, the female victim’s new partner was also attacked. There were no cases in which female offenders committed offences against the complainant’s new partner. In 33 cases (22%), all involving male offenders, the crimes took place in front of the children of either the mother or the couple. Applications for dangerous offender and long-term offender designations were not common. Only in two cases was a dangerous-offender application brought and in both cases, the court determined that a designation of long-term offender was more appropriate. In an additional three cases, the Crown sought and obtained a designation of long-term offender. No indeterminate sentences were imposed in this sample and none of the cases involved a sentence of life imprisonment, although one appeal decision reduced the life sentence imposed at trial to 13 years.Footnote 6 These findings are notable given that many of the cases involve significant violence over an extended period of time in the context of more than one intimate partner. One might speculate that Crown counsel view the risk to future intimate partners differently than they view the risk to unidentified persons in the community. This may reflect the view that intimate-partner violence presents less of a threat than stranger violence (Crocker 2005, 199). However, a review of the 122 appellate cases not citing the section demonstrates 10 cases where an indeterminate sentence for a dangerous offender was upheld and two additional cases where the dangerous offender designation was affirmed on appeal and remitted back to the trial judge to determine appropriate sentence. It thus appears likely that dangerous offender proceedings do not reference s. 718.2(a)(ii) because the focus is on assessment of future risk and whether risk can be managed in the community, rather than on aggravating and mitigating factors.

In 43 cases (28%), offenders were on conditions imposed by probation orders, no-contact orders, bail conditions etc. at the time of the offence, including 26 cases (17%) where the offender was subject to a no-contact order that specifically mentioned the complainant at the time of the offence. Consistent with other studies, assault-based offences are the most common charges found in the sample (Crocker 2005, 203; Beaupré 2015, 6). Most of the offenders were charged with multiple offences. The following table provides a breakdown of the charges filed most often.

Table 2: Offences Charged
  Appeal Cases Which Cite the Section
(% of 82 appellate cases)		 Trial Cases Which Cite the Section
(% of 71 trial cases)		 Total
(% of 153 cases)
Assault 1 (simpliciter) 29 (35%) 32 (45%) 61 (40%)
Assault 2 (causing bodily harm, or with weapon) 27 (33%) 19 (27%) 46 (30%)
Assault 3 (aggravated assault) 10 (12%) 8 (11%) 18 (12%)
Sexual Assault 1 (simpliciter) 13 (16%) 9 (13%) 22 (14%)
Sexual Assault 2 (sexual assault causing bodily harm, or with weapon) 3 (4%) 4 (6%) 7 (5%)
Sexual Assault 3 (aggravated sexual assault) 1 (1%) 1 (1%) 2 (1%)
Uttering Threats 24 (29%) 25 (35%) 49 (32%)
Weapon-related Offence 24 (29%) 18 (25%) 42 (27%)
Breach of recognizance/court order 15 (18%)Footnote 7 16 (23%) 31 (20%)
Criminal Harassment 10 (12%) 4 (6%) 14 (9%)
Attempted Murder 8 (10%) 4 (6%) 12 (8%)
Forcible Confinement 6 (7%) 6 (8%) 12 (8%)
Manslaughter 8 (10%) 3 (4%) 11 (7%)
Break and Enter (including unlawfully in dwelling house) 7 (9%) 3 (4%) 10 (7%)

Moving forward

The larger study, from which these preliminary results are drawn, will examine three interpretive issues regarding s. 718.2(a)(ii):

  1. Whether the section applies to former spouses and former common-law partners,
  2. Whether the section applies to non- cohabitating intimate partners such as in a dating relationship, and
  3. Whether the section applies to new partners of a former spouse/common- law partner of the offender.

The study will demonstrate that while judges tended to apply the section fairly consistently to offenders who committed violence against former intimate partners, judges applied it less consistently when cases involved non-cohabitating relationships and when violence was committed against a new intimate partner of a former spouse. There were no cases relying on s. 718.2(a)(ii) where the only victim was the former spouse’s new male partner, although the study will discuss one case outside of the sample where a new partner was the only victim and the judge ruled that the section did not apply.Footnote 8 The section was applied in cases where the former spouse and the new male partner were both victims, usually without differentiating between the two victims.

This study will also demonstrate that tensions exist between the need to denounce IPV and the need to reduce the overrepresentation of Indigenous peoples among prison inmates. Section 718.2(e) of the Criminal Code instructs courts to consider all options other than incarceration, particularly in the sentencing of Indigenous offenders. However, the judicial application of s. 718.2(a)(ii) suggests that denunciation and deterrence must prevail when sentencing for IPV. Courts have struggled, although often not explicitly, to reconcile these two provisions. Often these cases arise in the context of determining whether a noncustodial sentence would be uniquely appropriate for the Indigenous offender. As the crime becomes more serious, less weight is given to s. 718.2(e) and more weight is given to the denunciation and deterrence required by s. 718.2(a)(ii). Two important factors for courts appear to be the extent to which the individual offender has personally suffered from the effects of colonialism and residential schools, and the degree to which the community can support the offender. A few cases mention the fact that Indigenous women are subject to IPV at an alarming rate, although few decisions directly balanced these two provisions against each other. Virtually no attention was given to the contributions of colonialism and residential schools to perpetuating violence against women within Indigenous communities.

Concluding thoughts

Overall, the cases in this sample suggest that judges are considering IPV as a serious crime of violence. Judges do appear to recognize that IPV is highly gendered and that women are at particular risk when they attempt to leave a relationship, but what is not entirely clear is whether s. 718.2(a)(ii) is making much difference. Many cases where the section could be applied do not refer to it, but instead note the IPV context as an aggravating factor. In fact, more appellate sentencing cases involving IPV do not cite the section than cite the section. Section 718.2(a) (ii) is often cited in a cursory way, with little discussion of its history or purpose beyond describing it as an aggravating factor. It is simply added to the mix of aggravating and mitigating factors. When s. 718.2(a)(ii) appears to come into direct conflict with s. 718.2(e), courts are only occasionally explicit about how to reconcile these apparently conflicting factors. Noncustodial sentences are still granted, even in cases where offenders have a history of violating conditions and even where the complainant expresses fear for her safety. In some cases, the courts get stuck on interpretive issues, such as whether breaking into the victim’s home before attacking her constitutes a home invasion, and may lose sight of just how dangerous the violent offences are. Nonetheless, the appellate decisions in this study reveal a number of cases where noncustodial sentences imposed at trial are overturned on appeal on the basis of s. 718.2(a)(ii). This provision gives the Crown a strong foundation on which to appeal a sentence that appears to be manifestly unfit and gives the appellate court a strong foundation for overturning the sentence imposed at trial. The trial decisions that underlie the appellate judgments in this study reveal that trial judges still on occasion impose sentences well below the range identified by appellate courts, particularly in the context of intimate partner sexual assault. Section 718.2(a)(ii) plays an important role in these appeals facilitating a reconsideration of the sentence.

References