“Spare the rod, spoil the child”, the old adage went. In Canada, we have come a long way from that belief in child rearing (even with s. 43 of the Criminal Code). Yet some parents, particularly those who are new immigrants, may not fully appreciate how traditional disciplinary practices are not acceptable here. They may find themselves before the criminal courts charged with assaulting their own children, or involved with a Children’s Aid Society concerned that their children are in need of protection.
Determining the best way to handle these cases is particularly challenging for Crown prosecutors. A new initiative, called the Parenting Project, offers a progressive, multi-disciplinary approach.
In my experience as a prosecutor, many of those who are charged with over-discipline of their children did not have a great example of parenting themselves, had not received current information about child development/rearing and mainly come from disadvantaged single parent families. One important premise of the Parenting Project is this: the parents, charged with child abuse, love their children and reunification of the family unit is the goal.
There is tension between the family and criminal court systems: the goal of child protection workers is to reunite parents and children as early as possible, and this fundamentally conflicts with the timelines of the criminal justice system. The system makes people wait in order to achieve due process protections. Notwithstanding the new Jordan/Cody guidelines, this reality is cold comfort for the child who has to testify and must remain separated from his/her parent. This has an extensive and lasting impact on the parenting relationship.
Having presided in both family and criminal courts for over 22 years, I can say without hesitation that the Positive Parenting Project is the most significant and impactful innovation I have seen in my judicial career. When dealing with domestic violence – particularly violence by parents directed at their children – the paramountcy of focusing on the best interests of the children cannot be overstated if we are to facilitate their healing. In my opinion the Positive Parenting Project should be operating in every criminal court.
- The Hon. Justice Harvey Brownstone
The Project works to reunite parents and children without the child having to testify, and the parents are provided with more support tools to help them along this road as their children age. Everyone wins: the children receive the help they need and avoid the stress of testifying, the parent received support in an improved relationship with his/her child and the community can rest assured that safety was the paramount concern given the extensive consultation that takes place with each file.
The implications of making a mistake are serious, and so the parenting project requires extensive consultation with the police, child protection workers, duty counsel, defence counsel, child protection lawyers and the service agencies assisting with the parenting education. Consultation goes far beyond the examination, and allows accused persons admission to the domestic early intervention program, rather than the typical referral method, by way of police historical information.
Parenting Project referrals are based upon information from those who know the family beyond the allegations. The collaboration between the family and criminal systems ensures that the quality of information is very high.
The Therapeutic Practice
The therapeutic approach adopted in certain domestic violence matters appeared to be largely successful in deterring recidivism through counselling while promoting family reunification at an early stage in the proceedings. I believed that there was a place for a similar restorative justice approach to family violence directed at children, subject to appropriate safeguards.
- The Hon. Justice Sally Marin
We have seen the rise of therapeutic practice in criminal law—drug courts, domestic violence courts, Gladue courts and mental health courts are now the norm.
Therapeutic justice arose because there was dissatisfaction with the current adversarial system for all cases. Like the adversarial system, the twin goals of the therapeutic justice movement are minimization of risk in making a mistake and the protection of the community. In its initial stages, it was critical that the movement have the support of the judiciary.
The Parenting Project started in the Scarborough courthouse as a pilot in April 2013. Four years later, it has gained acceptance and has expanded to the North York courthouse as well. Once again, the participation of the judiciary was critical; they were integral in bringing everyone together to discuss the issues, problem-solve and assist in reaching consensus for the project to operate.
Our Parenting Project steering committee had the following experts: criminal and family judges, child protection lawyers from the local child protection agencies, police from the Youth and Family Violence units of the three divisions in Scarborough, representatives from community service agencies, defence lawyer, duty counsel, a family lawyer and myself, as representative of the local Crown office. The group drafted and agreed upon protocols.
How It Works
- Any party can refer a file for the project if there is a criminal charge laid.
- Initial contact with the child protection agency takes place in order to identify the stream in which the file will follow:
- Stream 1 files are those that have concurrent family court proceedings. When the parent is enrolled in the parenting program with assistance from the child protection agency, the criminal charges are withdrawn. Family court judges are advised and the family court system supervises the file—the most extreme cost to the parent is losing custody of the child to the state on a balance of probabilities.
- Stream 2 files are those in which a child protection agency is involved voluntarily with the family. The parent is referred to a parenting program deemed appropriate by the child protection agency. Upon proof of completion, regardless of whether the voluntary agreement between the family and the child protection agency continues, the charges are withdrawn. If the parenting course is not completed, then it is likely that this file becomes a stream 1 file because the child protection concerns have not been addressed to the satisfaction of the child protection agency. The majority of the files so far have fit within stream 2.
- Stream 3 files are those in which the child protection agency, if they were involved, has now ceased to have any involvement. The parent is referred to parenting programs within the community that are age-appropriate regarding to the developmental age of the child and upon proof of completion, the charges are withdrawn. The number of files in this stream has been relatively low.
- The client receives legal advice about the release of information and if signed, that release is sent to the child protection agency. A meeting between the Crown, police and child protection agency is then arranged to discuss the needs of the family, suitability of the case for the parenting program and the appropriate parenting program. Defence are allowed to participate as well if she/he wishes. Typically, defence will have a further pre-trial meeting with the Crown after the meeting with the child protection agency and police. If approved, the client is referred to the appropriate parenting program. Stream 2 and 3 files stay in the criminal justice system until there is proof of completion. Stream 1 files are withdrawn early prior to completion and the family court judge is advised.
- Bail issues are addressed allowing for contact even prior to first appearance in criminal court if appropriate. There are some restrictions requiring the child protection agency to agree to any modifications of the restrictions and in language that is clear to both systems.
- If there is no consensus about the referral, we (the police, child protection agency and the Crown’s office) will have a teleconference to outline any concerns and collaboratively agree for or against a referral. Sometimes in the identification of a parenting need, there was also a substance abuse component; in order for admission, the accused would have to decide whether she/he was also willing to seek help with the substance issue because the parenting project is designed to address the risk of reoccurrence. Meetings with defence counsel/duty counsel would continue to take place until a final decision was made about the referral.
- The charges are ultimately withdrawn with the warning to the parent that the Crown may relay/reinstitute these criminal charges if there is a further allegation of child abuse within a 12 month period following the withdrawal.
So far, the decisions against a referral have been few; in turn, the recidivism rate has been, as best as I have been able to track, low—only 2 out of the 100+ cases have resulted in additional criminal charges involving further child abuse.
The end goal of reuniting families where the offender has participated in appropriate counselling by virtue of early intervention, before the barriers took hold, has strengthened families and, ultimately, provided safer environments for children.
- Linda Hofbauer, Senior Counsel for Toronto Children’s Aid Society
About the author
Liesha Earle is the solo parent of twins. In 1993, she was called to the Ontario Bar and has worked as an Assistant Crown Attorney in Hamilton, Brantford, Brampton and Scarborough. For many years, she was the vice president of education for the Ontario Crown Attorneys’ Association and was a trainer/lecturer for members of the profession and for agencies outside of the profession. She has mentored students from the University of Toronto Forensic Sciences and Criminology programs.
The author wishes to thank Tony Loparco, former Crown Attorney for Scarborough, for supporting her work on this project.
She is especially grateful to Madame Justice Wong, who brought all the players to the table before she left to preside in the College Park courthouse.
The views expressed below are solely those of the author
 Kent W. Roach, Matthew S. Estabrooks, Martha Shaffer, Gilles Renaud, “180—A Criminal or Therapeutic Justice System? Examining Specialized Treatment Courts” 2017 64 Criminal Law Quarterly 180.