Canada’s Domestic Violence Courts Didn’t Work in the 90s and They Don’t Work Today

Photo via WikiMedia Commons.
It’s the definition of he said/she said. At Ottawa’s specialized domestic violence court at the Ottawa Courthouse, Judge Neil Kozloff heard the case of Ian, a man accused of partner assault—or allegedly pulling his pregnant wife to the ground by her hair and choking her. The crown prosecutor relied on four witnesses: the victim, her friend, and two police officers who were called to the scene. The defence called only one witness: Ian. Did he mean to grab her hair or was it an accident? Did she punch him in the face before or after he pushed her to the ground? Did he even push her to the ground, or did she trip over his feet? Is he lying, or is she? These are the questions both the Crown and defence tried to answer. Neither had much evidence other than their respective witnesses’ testimony. And the testimony better not take too longer—Judge Kozloff has a flight to catch. Heavy reliance on victim testimony was one of the key issues the specialized court was supposed to solve. Courthouses aren’t well suited to deal with the issue of domestic violence, with its complex power dynamics and dramatic implications for families. That’s why the domestic violence courts exist. Or did, at least in Newfoundland. Last year, the province’s government completely cut the domestic violence court program from its budget. Now, cases of intimate partner violence will go through the courts like any other assault case.

“We’re back to where we always were,” said Lynn Moore, a lawyer who worked as a prosecutor for Newfoundland’s Department of Justice for 20 years. “There’s no counseling for the offenders, no prosecution for the offenders, so the risk level for women and children is rising.” When domestic violence cases go through the normal court system, charges are rarely laid. Victims often recant their testimony out of fear, request that charges be withdrawn, or judges decide that jail is too harsh a sentence for a man who just needs help. Generally, women want violence to stop. They don’t necessarily want to see the father of their children or their partner of many years behind bars. But the constant back-and-forth of calling the police just to go to court and drop the charges perpetuates the cycle. The abuser gets more and more pissed off and the victim becomes more and more vulnerable. “Pretty much nobody got anything unless you killed her or caused serious bodily harm,” said Vivien Green, who was executive director of the Woman Abuse Council of Toronto when the specialized court was created. “The men get no consistent message that this is wrong. That’s one of the bottom lines,” Green said. That’s what Ontario looked like before the domestic violence court was created in 1997. And it’s what Newfoundland looks like today. Newfoundland’s family violence intervention court provided perpetrators with counseling instead of jail time, and had mandatory charging so that even if a woman declined to testify, charges would be laid. The counseling program taught abusive partners to think about what triggers their violence, and how to deal with that anger in other ways. Men who went through the program were four times less likely to reoffend than men who didn’t, Moore said. So in order to save money, the government cut a program that prevented the future costs of multiple trials. “In 20 years of prosecuting I’ve never had anyone say ‘this is a great process’ at the end of a case, except at family violence intervention court,” Moore said. “Everybody thought it was a great idea.” Women’s groups in St. John’s met on Thursday to work on their campaign to reinstate the court. “I think we’re going to see it come back,” said Moore. “The people that are in favour of the court are not giving up.”

Even in Ontario, where we are lucky enough to have a domestic violence court, huge problems with it still exist. It’s better than it was, thanks to Green. She literally wrote the standard for abuser counseling programs in Ontario, when the government realized they needed some quality control. (They got the message when one man went through the program, got his certificate, and went home to shoot his wife in the face five times. She survived and now speaks publicly about her experience.)

Still, the program’s funding hasn’t increased in 15 years. Councilors see the same number of men they did in the 1990s, despite the increase in population. And the program was just cut from 16 to 12 weeks to save money. As of April 1, men who hit their partners get less time to talk about the issue, and their partners get less time to reflect safely. A lot of men come in with macho attitudes, and it can take up to a month for any content to even be absorbed, said Green. The counseling program also gives women time to think about the situation without their partner around, and with someone checking up on them regularly. “Shortening it at all is a real problem,” Green said. The courts are incredibly disorganized and each one does things differently than the others, said Green’s son, Adam Helfand-Green, who runs a court watch program to sit in on proceedings at multiple domestic violence courts in Toronto. “You could have one judge that’s just awful and seems like they’re living in the 20s, and some are much better,” he said. The Women at the Centre court watch blog.
He mentioned an example that he’d recently written about on the court watch’s blog, womenatthecentre.com. It was the case of a man who’d hit and pinned his girlfriend to the ground because she wouldn’t leave his house, leaving her with bruises all over her body and a mark on her face. The victim had taken days to contact the police, and even then had to be coaxed to do so by her friends. The judge ruled that because the couple didn’t live together, she was a trespasser and he had every right to use force. The defence lawyer was kind enough to tell the victim that his client is well versed in karate, and thus “could have hurt her more” if he wanted to. The fact that she was just bruised and scratched showed her boyfriend had demonstrated restraint, he said. It’s hard not to read this as a message that states: Listen to your boyfriend or be beaten. If you are beaten, you’re lucky you’re not dead. In many cases, Ontario’s specialized court still completely fails victims. A lawyer represents the accused and the Crown represents the state. “There’s nobody there to represent the victim in all of this,” said Helfand-Green. “It’s just a really unfair dynamic.”

Domestic violence is not a small problem. It’s estimated that 29 per cent of Canadian women have been physically or sexually abused by a partner, according to a 2011 University of Ottawa study, Specialized Domestic Violence Courts: Do They Make Women Safer? Nearly 90 percent of all partner violence is men assaulting their female partners, the study says. And our current system does not have women’s safety at the forefront, said Holly Johnson, one of the authors of the study. Judges like the one mentioned may not be the standard, but there’s no way of educating him or determining how many other judges have similar attitudes. “The judges have been a real weak link,” said Green. She sat in on some of the domestic violence sensitivity training for Ontario judges and said it was “pretty pathetic.” Judges can only be trained by fellow judges, and women’s groups are seen as partisan advocacy groups that could sway their objectivity. Green invited a judge to hear from women’s groups once. He was an administrative judge, so he just assigned other judges to cases and didn’t actually hear them himself. He came to one meeting, and requested that all paper work with his name on it be shredded so no one would ever know he met with women’s groups. “They see knowledge as something that’s going to influence the judge’s decision,” Green said.

Right now, we have a one-size-fits all program that treats a minor first-time offender the same way it does a highly dangerous sociopath. “The worst part about this is that there’s been no-evidence-based—dare I say—rational thought, about it,” Green said. Another criticism is that the program changes physical behaviour without dealing with how abusers think, so they’re still emotionally abusive. “I guess I would say at least she’s not dead,” said Green.

Apparently that’s all Canadian women can ask for.

@waitwhichemma