JustResearch Edition no. 13

Current and Upcoming Research from the Research and Statistics Division

Current and Upcoming Research from the Research and Statistics Division

1. Program of Métis Research

With the Supreme Court of Canada decision in R. v. Powley , Métis were recognized as having an Aboriginal right to hunt for food as recognized under section 35 of the Constitution Act,1982 . In consequence, the Department of Justice Canada developed a research program consisting of 15 ethnohistorical research projects designed to explore the history related to possible Métis ethnogenesis and the imposition of 'effective European control' in selected sites across Canada.

Through the use of archival and published documents, these reports explore selected geographic areas from coast-to-coast. In each region, the reports examine the social history and genealogical background of the European-Indian ancestry population, the distinctive cultural and religious practices of the European-Indian ancestry group, and some possible indicators of 'effective European control.' A detailed, chronological, historical narrative is presented, along with a discussion surrounding certain concepts utilized in Powley.

In an upcoming issue of JustResearch , this program of research will be explained in greater depth, some highlights from several projects will be presented, as well as a discussion of certain methodological and conceptual issues faced in the course of the research.

Contact: Austin Lawrence, A/Senior Research Officer

2. Victims of Trafficking in Persons: A Literature Review

Trafficking in persons, also known as human trafficking, is a serious crime that involves:

Human trafficking is not migrant smuggling. It involves forcing the involuntary servitude of another for profit and trade and has been described as a modern form of slavery.

The objective of this research project was to undertake a comprehensive review of existing literature to identify the needs of victims of human trafficking at the various stages of their experience. In the context of this study, the 'needs' of human trafficking victims were the requirements for support – be they related to housing, the judicial process, legal needs, immigration status, administrative, medical or psychological needs, etc. – that, if met, might alleviate some of the harm experienced and might assist in the overall reduction in the incidence of this type of crime. The 'stages of experience' refers to recruitment, transit, destination, and recovery. A final report will be available from the Research and Statistics Division in the fall of 2005.

Contact: Jeff Latimer, Principal Statistician

3. Victims of Trafficking in Persons in Canada: Telephone Interviews

This research project seeks to gain a deeper understanding of the characteristics and the needs of victims of trafficking. It focuses on the following issues: how "potential" victims of trafficking are recruited and what makes them particularly vulnerable; the characteristics of victims of trafficking, including their age, ethnic background, sex, and in particular, their Aboriginal status; the living and working conditions of trafficked persons; movement of trafficked persons such as their countries of origin, transit countries and countries of destination, and once in Canada, points of entry and movements within Canada; the needs of victims of trafficking and how they are being, or not being, met; and barriers to providing services to victims of trafficking.

Telephone interviews with frontline workers were conducted in four sites: Vancouver, Toronto, Montreal, and Winnipeg. The frontline workers have first hand experiences of working with victims of trafficking and are from a broad range of organizations including victim services, non-governmental organizations providing settlement, community and health services, religious organizations, and Aboriginal and ethnic organizations. A report on this project is being finalized.

Contact: Dr. Kuan Li, Research Analyst

4. Victims of Mentally Disordered Accused

Over the past two decades, victims have become increasingly prominent in the criminal justice system in Canada and in other similar common-law countries. This is a result of advocacy movements and changes in legislation, policy, and practices governing their role at different stages of the system. Services for victims have increased in all provinces, and victims have specific procedural rights in criminal law, many introduced by Bill C-79 in 1999. The federal government also introduced the Victims of Crime Initiative at that time and through the Policy Centre for Victim Issues, Department of Justice Canada and provincial/territorial partners, there has been ongoing research, policy and legislative developments on victim issues.

Where an accused is found Unfit to Stand Trial (UST) or Not Criminally Responsible on Account of Mental Disorder (NCRMD), he or she falls under Part XX.1 of the Criminal Code. This is a comprehensive scheme that gives legal authority to provincial and territorial review boards to conduct annual reviews and issue dispositions as to the ongoing treatment, conditions, and, ultimately, discharge of the accused/offender.

Sections 672.5(14-16) of the Criminal Code relate to the admissibility of victim impact statements at Review Board hearings. Subsection 14 provides that a victim may submit a written prepared statement to the Board. Subsection 15 directs a copy of the statement to be given to the accused and the prosecutor as soon as possible after the verdict of NCRMD is rendered.

Amendments have recently been tabled that would permit a victim to read his or her victim impact statement to the Review Board, unless deemed inappropriate. Following the verdict, the court or Review Board would also be required to advise a victim of the right to submit a victim impact statement at the initial disposition hearing for the accused and at subsequent hearings where a change in status is possible (e.g., being released from a hospital to the community through a conditional discharge).

The goal of the current project is to review the literature from Canada and other relevant, common law countries to determine the appropriate role of victims when there has been a finding of NCRMD (or the equivalent) and to critically examine the issues surrounding a role for victims in Part XX.1 of the Criminal Code.

Contact: Jeff Latimer, Principal Statistician

5. The Cost of Pain and Suffering

The third methodological series report, "The Cost of Pain and Suffering from Crime in Canada ", has recently been published and is available on our web site. This report presents the findings of research to assess the extent of crime induced pain and suffering in monetary terms. The research adopts an innovative approach to estimate the cost of pain and suffering from crime in Canada , both overall and for specific categories of crime, namely violent crimes, property crimes and other crimes such as drug offences and Criminal Code traffic offences. The estimation is based on three components: the number of incidents for each type of crime, the proportion of victims feeling worried about safety, and the value of perceived and actual mental distress as a result of the crime experience.

Ambrose Leung. (2005) The Cost of Pain and Suffering from Crime in Canada . Ottawa , ON : Research and Statistics Division, Department of Justice Canada .

Contact: Kuan Li, Research Analyst

6. High Risk Offenders: Case Law Summary and Review

Canada has amended the Criminal Code of Canada regarding serious violent offenders many times over the last 55 years. The most recent amendments came in 1997 with changes to the Dangerous Offender section (Part XXIV) and the addition of the Long-term Supervision Order provision. The amendments, aside from the addition of the Long-term Supervision Order, also abolished the determinate sentence for dangerous offenders, replacing it with a mandatory indeterminate sentence. Other amendments included changes to streamline procedures.

In light of these legislative changes, a review of the case law after the enactment was conducted. This review compares cases that used the old legislation, some combination of the new and old legislation and cases using only the new legislation. Further, the report examines trends across a number of different areas, including: type of offence, factors related to a finding of dangerousness or long-term supervision, use of experts, tools for evaluation of dangerousness, common diagnoses, and treatment issues.

Contact: Suzanne Wallace-Capretta, Research Manager

7. Canadian Perspectives on Selected Issues Related
to the Anti-Terrorism Act

Assessing the opinions of Canadians on the Anti-Terrorism Act has been an important issue for the Department of Justice and as such, a custom survey was designed to address a number of issues related to the Act as well as other related topics. A survey of over 1700 Canadians with an over sample of those identifying themselves as a minority was completed in March 2005. This survey addressed Canadians awareness of the Act , concerns over terrorism and post 9/11 security measures, application of the Act as well as possible effects of the Act.

Contact: Nicole Crutcher, Senior Research Officer

8. Mandatory Sentences of Imprisonment in Western Nations: Representative Models

Mandatory minimum sentences of imprisonment continue to be a controversial sentencing tool. While Canada currently has 29 offences in the Criminal Code that carry a mandatory minimum sentence, there is little known about what other Westernized countries are doing with regards to this means of sentencing. This report examines whether there are mandatory minimum sentences in place in various countries and if so, for what type of offences. Furthermore, this report examines the occurrence of judicial discretion clauses that allow judges to go below the mandatory minimum sentence should the case warrant it. Where available, the report also discusses public opinion research conducted in other countries on mandatory minimum sentences.

Contact: Nicole Crutcher, Senior Research Officer

9. Review of Recent Literature on Criminal Harassment

Section 264 of the Criminal Code of Canada, the criminal harassment provisions, came into effect on August 1, 1993 . Several recent Criminal Code amendments have strengthened the provisions by making murder committed in the context of criminal harassment a first-degree murder offence, by making the breach of a protective court order an aggravating factor in sentencing for criminal harassment, and by doubling the maximum sentence for the offence of criminal harassment to 10 years imprisonment for an indictable offence.

In light of these legislative changes, four more years of experience in implementing the criminal harassment provisions, and the emergence of Internet harassment as a serious risk, the Department of Justice conducted a review of recent literature on criminal harassment to contribute to a broader understanding of issues that have arisen since 1993. The major emphasis is on recent Canadian literature, but references are also made to some literature from the United States , the United Kingdom and Australia , where criminal harassment legislation has many similarities with the Canadian approach.

The review examines literature in Canada in four areas: statistical profiles; legal commentary on section 264 and subsequent related amendments to the Criminal Code; reviews of overall effectiveness of criminal harassment legislation; and, references to criminal harassment in the context of discussions of a variety of criminal and civil law issues.

Contact: Nathalie Quann, A/Senior Statistician

10. Criminal Harassment: Understanding Criminal
Justice Outcomes for Victims

This research investigated criminal harassment victims' experiences of the criminal justice system. Victims provided their opinions on how the justice system can effectively deal with criminal harassment. The following general questions guided the research:

  1. What are the positive and negative experiences of victims in the justice system?
  2. What do they believe constitutes a positive outcome?
  3. What barriers stand in the way of achieving these outcomes?
  4. What aspects of the law or system facilitate these outcomes?

This qualitative research project involved in-depth interviews with 15 victims of criminal harassment who had gone through the criminal justice system and 11 key informants who work with victims. Victims were asked about their views on effective handling of cases, desirable outcomes and their own experiences while interviews with key informants supplement the insight provided by the victims themselves, presenting information from a larger pool of victims. All were asked about challenges they face when dealing with victims and working with the criminal harassment provisions.

This research found an alarming lack of awareness of the criminal harassment legislation, most strikingly among front line justice system personnel. The victims themselves were also largely unaware of the law and, even after having gone through the courts, were sometimes still confused about whether charges were laid and what actually defines stalking in the law.

Victims generally reported mixed experiences in the justice system, mostly negative. Key informant interviews confirmed most complaints raised by victims. Positive experiences occurred when police acted quickly, the complaint was taken seriously and through the use of Victims' Services. Negative experiences occurred when complaints were trivialized, when peace bonds were consistently broken and when the victim felt left out of the process.

Victims want three basic outcomes: they want to feel and be safe, they want the harassment to stop, and they want to be believed. Most reported that the justice system had not made them feel safer and that, even after the case is closed, the harassment can be ongoing or the experience has left them feeling so insecure that their life is still disrupted. Victims were generally exhausted and worn out by the harassment and simply wanted it to stop. Because many of the victims had an intimate relationship with the harasser, they were not intent on harsh punishment but wanted an end to the constant threat in their lives. Victims also expressed a great deal of concern over their complaints not being taken seriously at all levels of the justice process. They felt that personnel, especially police, did not understand why they were afraid and did not see the harassment as anything other than an annoyance. This perceived lack of validation exacerbated the emotional stress associated with the harassment.

Contact: Nathalie Quann, A/Senior Statistician

11. Child Protection Program Consultation Models

The Janeway Child Health Centre opened in 1966, and shortly thereafter the first Janeway Child Protection Team was formed to ensure reporting of hospital identified child protection cases. As the role of the Child Protection Team evolved members became directly involved in the assessment of suspected child abuse and neglect. The current Janeway Child Protection Co-ordinating Committee began in June 1991 with the stated purposes of providing an efficient, comprehensive and collaborative multi-disciplinary response to all referred cases of abuse, and ensuring that interventions take place in accordance with established policies and procedures and based on principles of the "the child's best interest". The Child Protection Co-ordinator assures that the program operates smoothly and efficiently. The issues brought to the Co-ordinator highlighted the value of the developing a "consultation model". In 1992 the Co-ordinator recognized the importance of formalizing the consultation model and began to document the details of cases in a ledger, hereafter referred to as the 'Logbook'. In addition, the consultation model was promoted during in-service sessions in the hospital. Out of the consultation model developed formalized hospital policies regarding protocol and procedures for case consultations, reporting and documentation of telephone calls, etc. Therefore, this study is a review of accumulated data from the consultation logbook compiled from 1992 to 2000 and an in-depth study to analyse additional information associated with cases identified for 1994 and 2000.

A review of the data as recorded in the logbook for 1992 – 2000 confirms the benefits of the consultation model and solidifies the intent of the Janeway Child Protection Program to continue its use. This study also highlights the value of expanding the use of this model to the wider community, which would result in the need for a full time co-ordinator position. Many questions from the present review pose possibilities for additional research including an in-depth comparison of data accumulated during each year of operation and a breakdown of data for the differing types of abuse. The study also indicates a need to develop a user-friendly data collection form for the Co-ordinator's use that could be used to facilitate further research.

Contact: Nathalie Quann, A/Senior Statistician

12. Treatment Program for Children Disclosing Sexual Abuse

The data analysed in this study stem directly from the experiences of child victims of sexual abuse with the criminal justice system. The program, "That was Then…This is Now" began in May 1992 in St. John's , Newfoundland and Labrador . The program targets children who have disclosed sexual abuse. This retrospective study examines letters, written at the end of each treatment program by participants and their parents. Each letter contains comments made by individual participants about their experiences. In this manner, the letters represent the opinions of the treatment program participants as a group, yet allow for anonymous, individual expression. The purpose of the analysis is to ascertain which aspects of the criminal justice system posed difficulties or concerns for the alleged victims of sexual abuse and/or their parents.

Contact: Nathalie Quann, A/Senior Statistician

13. Focusing on Children When Parents Divorce:
The Importance of "Best Interests Criteria"

When parents decide to live apart they are forced to address the critical question of how to make decisions about caring for their children. The concept of best interests of the child provides a framework for making decisions about children when parents separate and divorce. It is seen as a means of furthering the well-being of children. One of the key legislative changes linked to the Child-Centred Family Strategy announced by the Department of Justice Canada is the proposed addition of specific criteria to the "best interests" clause. The inclusion of criteria is an important way to bring meaning to the concept of best interests, and it provides family justice professionals with evidence-based information to guide decisions. Specific criteria also help to bring consistency and increased predictability to the decision-making process. This paper provides additional information about the proposed criteria that can be used in public legal education and in materials that explain the proposed legislative changes. The proposed "best interests" criteria are discussed in terms of how they contribute to healthy child development and how they can be applied in individual situations to enhance child outcomes when parents divorce. Research findings and clinical evidence related to the proposed criteria are summarized.

Contact: Jim Sturrock, Research Manager

14. The Emerging Phenomena of Collaborative Family Law: A Qualitative Study

The exponential growth of "collaborative family lawyering" (CFL) is one of the most significant developments in the provision of family legal services in the last 25 years. In general, "collaborative lawyering" refers to a contractual commitment between lawyer and client not to resort to litigation to resolve the client's problem. The lawyer is retained to provide advice and representation regarding the non-litigious resolution of the conflict, and to focus on developing a negotiated, consensual outcome. If the client decides that legal action is ultimately necessary to resolve the dispute, the retainer stipulates that the collaborative lawyer (along with any other collaborative professionals, such as divorce coaches or financial planners) must withdraw and receive no further remuneration for work on the case. Collaborative lawyering is used in number of different areas of law and in particular in family law.

The Collaborative Family Lawyering Research Project is a three-year initiative funded by the Social Sciences and Humanities Research Council of Canada and the Department of Justice Canada , which examined the practice of CFL in Canada and the United States . The objective of the research was to explore the differences that CFL makes to the process and outcome of divorce disputes, and in particular to assess its impact on the clients of family legal services.

Contact: Jim Sturrock, Research Manager

15. Study of Unmet Need for Civil Legal Aid in Nunavut, Northwest Territories and the Yukon

The Department of Justice Canada , in cooperation with the Territorial Governments and associated Legal Aid Plans, will conduct research over the next 12 months to examine the nature and extent of unmet need in the territories for legal aid services in family and other civil law matters. Related research will be conducted simultaneously in all three territories. The research is being carried out as part of federal policy activity to support the development of access to justice services in the territories.

The study will initially involve interviews with representatives of organizations in the territories to gather information from informed individuals about the nature of unmet needs for services that might be provided through the legal aid system.

It is expected that preliminary results will be available by September 2005.

Contact: Ab Currie, Principal Researcher