Love Hurts

by Edward Prutschi   May 19, 2010

Love hurts. Never has that expression been truer than in the misguided Kafkaesque labyrinth that forms the core of Canada’s domestic violence courts. Domestic violence charges are in a pitched battle with impaired driving cases to see who can destroy the crumbling foundation of our nation’s criminal courts first. They form a massively disproportionate percentage of the court’s daily caseload to the point where many courthouses have had to set aside an entire day each week just to deal with the volume of administrative set-date appearances. Only a small fraction of these domestic abuse cases involve repeat offenders, personal injury, weapons or sexual charges. The vast majority of the domestic cases clogging our system consist of first offenders charged with pushing, slapping, punching, kicking or threatening their partner in the course of an argument, yet causing no injury.

With the scene now set, let’s turn to getting some obvious but important truisms out of the way. Domestic violence is a serious problem. Protecting vulnerable spouses – predominantly but not exclusively women — is a valid, and indeed necessary, goal of our criminal justice system. The dysfunction arises when our justice system chooses to address domestic abuse crimes by treating the exception while ignoring the rule. Our response to the over-arching fear of the one-in-ten-thousand case where a first-time accused murders his spouse while on bail has been to treat every single person in the system as an acknowledged serial killer. 

Every element of our justice system’s domestic violence strategy is directed by an ill-conceived over-zealous “zero tolerance” policy. As soon as a report of domestic violence is made to police, no matter how trivial or unsubstantiated, police are directed to lay charges and hold suspects in custody for bail hearings. Our crown attorneys are then instructed to oppose release on bail unless the strictest terms are imposed. These terms will inevitably include requirements that the accused reside in the company of his surety and have absolutely no contact with the complainant for the many months that it will take our overburdened system to bring the case to trial. Virtually no weight is given to desire of the complainant herself to see charges withdrawn or to have her spouse return to the family home. The end result is to turn an isolated incident perpetrated in the heat of anger into a year-long persistent torturing of a family battling all the emotional and financial struggles that plague every one of us at one time or another.

Once the accused is faced with the crushing reality of a year or more battling charges (all the while separated from his family) our system will dangle a carrot offering to vary bail conditions to permit family reunification if the accused will enrol in a course of court-ordered counselling and enter a guilty plea to the charges. It is here that our system reveals its biggest failing. By insisting that an accused accept a conviction (or even a finding of guilt) we have brought into play a host of potential employment and travel consequences which create a strong disincentive for anyone to actually participate in the very counselling we think will most contribute to the future safety of this family. If our system is serious about doing what is in the best interests of victims of domestic violence, it is incumbent upon police and crown attorneys to shift away from paternalistic zero-tolerance policies to actually listen to the wishes of their complainants and help repair a family in crisis rather than putting up legal roadblocks that only serve to tear it apart.

The solution is to stop using a bazooka to squash a mosquito. 

In cases of an accused with no prior criminal record being charged with assault and/or threatening where there are no injuries, police should be directed to lay a charge but release the accused on a Promise to Appear and an Own Undertaking (Forms 10/11.1). The Undertaking will require the accused to abstain from communicating directly or indirectly with the complainant for a period of 72 hours. This is designed to allow a cooling-off period from the heat of the moment that lead to police being called in the first place. A separate condition would prohibit any communication with the complainant for the duration of the Undertaking except with the written revocable consent of the complainant to be filed with the local Victim Witness Assistance Program (VWAP). This permits families who are so inclined to re-unite and begin working on the underlying tensions that lead to an allegation of violence in the first place without encouraging emotional and financial ruin. If a spouse is not interested in reunification with an accused, the accused is out of luck and will remain barred from the home. 

Finally, at the first court appearance, early pre-screening by crown attorneys would identify these cases and offer meaningful beneficial resolution of the charges. An accused should be encouraged to enrol in a court-sanctioned domestic violence program [these already exist all across Canada and are known variously in Ontario as PARS (Partner Assault Response Program), EIP (Early Intervention Program) or DAP (Domestic Abuse Program)]. If the accused completes the program to the satisfaction of the program coordinator, the accused will be asked to enter into a Peace Bond pursuant to s. 810 of the Criminal Code and all criminal charges will be withdrawn. The Peace Bond has a 12 month duration and can be customized to address issues specific to the individual but will most commonly prohibit contact with the complainant (except again with his/her prior written revocable consent) and will prohibit the accused from being in possession of any weapons.

These relatively small shifts (addressing domestic violence release conditions and substituting peace bonds for guilty pleas) would have far reaching positive impact on individuals charged with domestic violence offences while dramatically easing the burden these charges create on our sagging criminal courts. If we are serious about efficiently and meaningfully encouraging justice and rehabilitation in our domestic courts, it is past time to engage in a mature discussion about the failures of our existing policies while being open to real change.