Lawyers and academics are lauding new federal legislation on domestic abuse that they say will strengthen the courts’ definition and treatment of intimate partner violence.
These changes − including broader parameters around domestic violence, a higher threshold for bail and increased sentences for repeat offenders − come as part of Bill C-75, unveiled in Parliament last week with the overarching goal of speeding up Canada’s chronically backlogged courts.
University of Ottawa law professor Elizabeth Sheehy says the new approach to domestic violence “has the potential to enhance the safety of victims and to increase their trust in the criminal-justice system.”
In bail court, for example, a reverse onus would be put on repeat abusers to prove why they should be released − rather than on the Crown to make a case for keeping them locked up.
Prof. Sheehy said research has shown that domestic-violence offenders present a high risk of breaching bail conditions.
“The reform thus reflects what we know about this group of offenders and does not prohibit bail, but rather raises the bar and demands a searching inquiry into the risk presented to a domestic partner by the accused person,” she said.
Another significant proposal is to modernize the language of the Criminal Code.
The more inclusive “intimate partner” would replace “spouse” and “common-law partner,” and the definition would be broadened to include past partners − changes that Peter Jaffe, a University of Western Ontario education professor and director of the Centre for Research and Education on Violence against Women & Children, praises as a long-overdue acknowledgement of dating violence.
According to Statistics Canada, between 2005 and 2011, more than half (54 per cent) of all domestic-violence court cases involved violence between dating partners. Spousal violence accounted for 46 per cent. The violence in almost one quarter of cases occurred after a breakup.
“There has been a tendency to minimize [dating] violence in the past, because people aren’t cohabiting − they’re not trapped by mortgage payments and children and locks on the door,” Prof. Jaffe said.
The update sends a “profound signal” that these are equally serious crimes.
The bill also proposes increasing the maximum penalty for repeat domestic abusers, and would clarify that sentencing provisions aimed at making intimate-partner violence an aggravating factor applies to both current and former partners.
Toronto defence lawyer Frank Addario, speaking for the Criminal Lawyers’ Association, said Sunday that the legislation proposes a “partial solution to the pervasive, persistent social problem that is intimate-partner violence.”
They are progressive recommendations, he said − but in some ways are just “codifying” what’s already happening in most courts across the country.
“Judges are already doing most of the things that the government is attempting to legislate,” Mr. Addario said.
This includes, he said, the proposal to recognize strangulation as an elevated assault, alongside assault with a weapon and assault causing bodily harm.
While Mr. Addario says strangulation is already seen as a serious form of violence, the on-paper change “is a signal that Parliament regards it more seriously.”
Prof. Sheehy hopes the official amendment would mean that prosecutors “will not have to prove that strangulation caused bodily harm in order to secure a conviction that reflects the seriousness of such an assault, which is difficult because the injury from strangulation is often not apparent.”
Prof. Jaffe said strangulation is a risk factor for escalating violence − citing a 2008 study out of the United States that found women who are victims of choking as a form of violence are four times more likely to be killed.
Research has shown that many femicide cases are the result of escalating, long-term violence, with the vast majority being “predictable and preventable,” Prof. Jaffe said.
Between 2003 and 2016, Ontario’s Domestic Violence Death Review Committee reviewed 289 domestic-homicide cases (including 410 deaths). Almost three quarters of cases involved a couple with a past history of violence.
“The criminal-justice system is only part of the fix,” Prof. Jaffe cautioned. “The criminal-justice system is only as effective as the community in which it is embedded. It still depends on friends and family and co-workers and mental-health and social-service agencies to provide part of an overall community response.”
It is a sentiment that others echo.
“Criminal-law reform alone cannot protect women − it is too little, too late,” Prof. Sheehy said. “We need police and parole officers who take this form of violence seriously and enforce the criminal law we already have. We need family lawyers and courts who are prepared to ‘see’ and respond to this violence in their custody and access decisions.”
She also hopes to see more investments in counselling and support services − ”as well as in women’s social, economic and political equality, in order to make a dent in the structural inequalities that keep women from safe exit and freedom from violence.”
Mr. Addario sees the legislation as “the punishment piece, not the prevention piece.”
He hopes that will follow.
“There is a constant desire to trick people into thinking the big stick of punishment will solve social problems,” he said. “It doesn’t.”
With a report from The Canadian Press