Kathryn L. Smithen is a lawyer who represents domestic and sexual violence victims in family courts.
A man sees a woman on a street whom he does not know. He hits her in the face and, while pushing her against a wall, threatens to kill her.
Another man grabs his spouse during an argument and pushes her against their living room wall while threatening to kill her, too.
If Man A is apprehended by the police, he will be charged criminally with the assault and threatening death of the woman he attacked. If he doesn’t plead guilty, he will likely go to trial. If the victim’s testimony is believed by the court, he will be found guilty of serious crimes. The “normal” guidelines of the Criminal Code will apply to how he is sentenced. He may even go to jail, depending on his history in the system and other factors.
Man B, the husband, common-law spouse or intimate partner – as the more comprehensive language of the newly introduced Bill C-75 proposes to define him – will be charged with the same criminal offences as Man A if his partner or a neighbour who heard the assault calls the police. The police will, in many cases, uncover evidence of other assaults after talking to the victim, because police are aware that domestic violence is a highly repetitive, misogynistic practice.
However, that is where any similarities between these two cases will likely end.
Partners criminally charged with assaulting their spouses regularly avoid criminal prosecution. This is not a generalization. It is something that I have regularly seen during my almost seven years of practising family law and representing women who are the victim of domestic violence. Perpetrators of domestic violence are regularly offered the option of resolving their criminal cases with diversion. When they provide proof of completion of a 16-week partner-assault response program (PAR), they are then “invited” to enter into peace bonds. When this happens, the criminal charges are withdrawn and the prosecution of the domestic-violence charges end. No trial, no sentencing and no criminal record.
To add insult to injury, sometimes victims are told that the withdrawal of the domestic-violence charge is “the best thing for your family.” From a criminal law perspective, it is as though the offences never took place.
Crown attorneys are responsible for the direction criminal matters take in Canada, so even if a victim wanted a trial on the merits of her accusations, unless the Crown is prepared to prosecute, the peace bond route is pursued.
The astonishing fact of these situations is even more baffling given that an Ontario Crown Law Policy Directive published in 2017 mandated that a case where criminal prosecution does not move forward must be “exceptional.”
Then comes the family law case, where lawyers such as myself try to get custody and access orders to keep our female clients and their children safe after a criminal case collapses. Litigants such as Man B often tell judges in their family law matters – after the Crowns withdraw their criminal charges in favour of diversion – that “the case was so weak against me, the Crown chose not to prosecute.”
Sadly, sometimes family judges are persuaded by these farcical and self-serving stories, perhaps unaware of the two-tiered way in which domestic-violence charges are being addressed in the criminal courts at the front end by Crowns.
The wives/mothers in these same family law cases are often expected to separate “their” issues with their former partners from their children’s right to have both parents in their lives. Incredulously, this expectation is imposed in situations where the same violence that led to the criminal charges in the first place puts the children of Man B at risk of harm, too.
Many tough provisions in law addressing domestic violence already exist in the Canadian criminal justice system. Section 718.(2)(a)(ii) of the Criminal Code currently stipulates that “a sentence should be increased … to account for any relevant aggravating … circumstances relating to the offence or the offender ...[including] evidence that the offender, in committing the offence, abused the offender’s spouse or common-law partner.”
And now,s Parliament purports that it will make women suffering from domestic violence safer by creating higher thresholds for bail and increased sentences for repeat offenders as part of Bill C-75.
Measures such as these – even new laws such as those proposed in Bill C-75 – do not inspire the trust of domestic-violence victims in the criminal justice system, when that system is not treating the prosecution of domestic-violence perpetrators as a foreseeable priority.
There is nothing profound in misleading the public that femicide cases are being actually prevented when the critical work in treating domestic-violence victims equally at the front end of the criminal justice system is being ignored.