Regular readers of my SLAW column will know that, while I'm an ardent supporter of initiatives that enhance the efficiency of our criminal justice system, I am also a regular critic of how that same system deals with the deluge of domestic-related charges that clog our courts on a daily basis. For these very reasons, a promising new pilot project has recently caught my attention.
The Integrated Domestic Violence Court (IDV) has ambitious plans to combine cases from two of Toronto's busiest courthouses: the criminal courts of The Old City Hall and the family courts housed at 311 Jarvis Street. While shying away from the most complex issues that arise can arise (criminal trials, divorce, family property, and child protection proceedings) the IDV will have authority to conduct case conferences, make temporary orders, and final orders on consent of the parties in family cases for custody, access, and support along with hearing bail variations, conducting criminal pre-trials and accepting guilty pleas.
Numerous potential advantages accrue by hearing the criminal and family cases in a single courtroom before a single judge. First and foremost, the presiding jurist enjoys the benefit of a far more complete picture of the family situation. 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.
At this embryonic stage in the pilot program, a number of important questions remain unanswered. All parties must consent to the process before being transferred to the IDV and approval by the criminal crown attorney is also required. What factors will be considered by the crown in assessing which cases are screened eligible for the IDV? What will be the Crown's involvement once a case has been transferred? Where will jurists for the new court be drawn from – the family system, criminal courts, or both?
This last question raises particularly thorny issues as many judges within either of the two systems have little or no experience with the contrasting theme. Can a criminal court judge who spent her entire career before being appointed to the bench as a defence lawyer or crown be reasonably expected to understand the intricacies of family support orders? Similarly, will defence lawyers and crowns trust a career family lawyer and family court judge to make appropriate rulings on bail conditions and criminal sentences?
On a practice-management level, it is also unclear whether the IDV anticipates having clients represented by separate criminal and family counsel or whether the expectation is that a single lawyer will be responsible for both legal areas. Clients working on a tight budget (which, if we are not kidding ourselves, will be the vast majority) will be sorely tempted to seek out 'jack-of-all-trades' counsel even though they may be better served by experienced counsel with focussed expertise in these vastly different specialities.
While questions abound and bumps in the road are inevitable, the Ontario Courts are to be commended for having the courage to engage in some creative thinking on how to address the complex interdisciplinary problems posed by domestic violence. This is one experiment whose results are worth watching closely.
