The Unintended Consequences of Canada’s Domestic Violence Policy

By: Zoli Kertesz BA, PGD (Justice System Administration), MPPAL (Public Policy, Administration and Law)

Freelance Writer and Part Time Professor at School of Social and Community Studies, Humber Institute of Technology and Advanced Learning

Spending almost 9 years as a Court Officer sitting through numerous bail hearings, trials and sentencing hearings I often heard “But Sir, I’m innocent” or “Those facts are lies”. A significant portion of these statements was uttered by accused males in cases of intimate partner violence (IPV) and I often wondered if any of these accused were speaking the truth.

Recent data obtained from 14,000 heterosexual couples surveyed in the 2014 Canadian General Social Survey on Victimization (CGSS) found that for the first time the number of male victims of intimate partner violence was significantly higher than the number of female victims of IPV (1). Despite this, male victims are typically less likely than female victims to report incidences of IPV to the police (2). Only recently has society begun to recognize that men too can be victims of IPV. Of note here is to distinguish between police-reported data and the data obtained from the CGSS. Police-reported data indicates that women are substantially more likely to experience and report IPV incidents (1). There are numerous studies about violence against women within the context of intimate relationships, yet very little exists in regards to male perpetrators of IPV who have been either falsely accused and/or wrongfully convicted. Without question society must protect female victims of domestic violence however, it is also important to bring awareness to the men who have been falsely accused and/or wrongfully convicted, given the legal system in liberal western societies is also expected to consider protecting the rights of the innocent. Recent data indicates that in cases involving IPV, males found guilty were significantly more likely to be sentenced to a term of custody compared to females found guilty of a similar crime (33% vs 14%) (3), indicating a possible gender bias in the court system.

The current criminal justice response to cases of domestic violence employs a two-pronged approach “…the primary objective of which is the criminalization of spousal assault.” (4): 1) Charging policies that remove responsibility and blame for the decision to lay charges from the victim, 2) Prosecutorial policies that promote more rigorous prosecution of IPV cases.  The policies underlying this approach enable both policing agencies and the Crown to effectively investigate, charge and prosecute offenders accordingly. For policing agencies, their ability to exercise discretionary powers when determining when to arrest removes “…responsibility (and blame) for the decision to lay charges from the victim.”(3) In turn, the desired effect not only increases the number of charges laid in cases of domestic violence but has the potential to discourage male victims from coming forward and reporting victimization. Given society’s pervasive understanding of stereotypical gendered roles (promoted by mass media) it is easily understandable how men can be fearful and reluctant to report IPV-related incidents. Currently, “Every Canadian jurisdiction has implemented some form of pro-charging policies, which require that charges be laid in cases of intimate partner violence, where there are reasonable grounds to believe an offence has been committed.”(3) Pro-charging policies exist to protect those most vulnerable from occurrences of IPV. Data from 2011 revealed that charges were laid in 71% of IPV incidents reported to police compared to 39% of non-IPV incidents (3).

However, this pro-charging policy also leads to an increasing number of individuals who get caught within the justice system – the falsely accused and/or wrongfully convicted. Recently, an Ontario man spent 19 days in jail after his ex-wife fabricated a story claiming she was a victim of domestic abuse. He was only released after his spouse recanted her story (5). Had she not recanted, an innocent man would have spent more time behind bars. This begs the question: How many more cases like the above have resulted in wrongful convictions?

Outside of Ontario, during incidents of intimate partner violence the investigating policing agency has the discretionary power to clear an IPV incident through alternate means in the event that a charge is not warranted. That determination is based upon the evidence and results of the investigation – including victim and witness statements. The ability to clear an incident by alternate means refers to, “…requests by the complainant not to lay charges, reasons beyond the control of the department, and departmental discretion.”(3) In essence, the policing agency has the ability to determine if a charge is reasonable based upon the facts of the incident. In Ontario, policing agencies do not have such discretionary ability with IPV incidents – they must charge or defer to the Crown for further determination. This alone has ramifications for the individuals who are falsely accused. In other jurisdictions a policing agency has the ability, however limited and/or limitedly used, to exercise their discretionary power during IPV incidents. In doing so, and clearing an IPV incident by alternate means (determining a charge is not warranted), it avoids all the ramifications associated with false allegations that resulted in a criminal charge – and potentially saves an innocent man from unjust hardships.

In addition to the severe legal and financial consequences associated with a false allegation and/or wrongful conviction there will be other hardships that the individual will have to endure – the journey from criminal court to family court. In instances where an accused person is experiencing custody battles or difficult divorce proceedings it is easy to understand why one partner would fabricate a story in order to benefit from the consequences brought down upon the other. A prominent Toronto criminal lawyer found that, “…the motive to lay a false accusation against a former spouse…is often motivated by revenge, to gain leverage in a family court proceeding, or to thwart custody and access to children” (6). Consequences of false allegations and/or wrongful convictions at the criminal court level will likely have a negative effect during family court proceedings. Critics will argue that such a spillover effect is rare (7). However, a pro-charging policy, despite being able to discourage incidents of domestic violence by promoting an environment that encourages victims to come forward – also encourages false allegations. Perhaps it is time that these consequences are also given the consideration they deserve.

For more equitable outcomes in IPV investigations, policing agencies in Ontario should be given greater discretionary powers when attending to IPV incidents through employing an alternate means approach. Respectively, Ontario policing agencies should be able to make charge-related decisions independent of the Crown’s influence. Granting Ontario policing agencies greater discretionary powers when determining when to lay charges during IPV incidents and when to employ other alternatives may aid in preventing the arrest of innocent people. Greater discretionary powers may act as the initial phase in a process aimed at filtering out the potential for false allegations and minimizing wrongful convictions in IPV cases. In order to provide a more wholesome consideration there is a need for further research that examines Canada’s pro-charging policy around IPV incidents from the perspective of various stakeholders including those who have experienced the unintended consequences of such legislation.

References

1. Lysova, A. et al., “Prevalence and Consequences of Intimate Partner Violence in Canada as Measured by the National Victimization Survey”. Partner Abuse, 10(2), 2019: 199-217.
2. McCarrick J. et al., “Men’s Experience of the Criminal Justice System Following Female Perpetrated Intimate Partner Violence”. Journal of Family Violence, 31(2), 2016: 203-213.
3. Beaupré, P. “Intimate Partner Violence, Family Violence in Canada: A Statistical Profile”. Statistics Canada Catalogue no. 85-002-X. 2013.
4. Final Report of the Ad-Hoc Federal-Provincial-Territorial Working Group Reviewing Spousal Abuse Policies and Legislation. [justice.gc.ca] Department of Justice Canada
5. Innocent man locked up 19 days after ex-wife makes up story: “You hurt everyreal victim out there”. The National Post. June 1, 2017. [nationalpost.com]
6. False domestic abuse allegations cause long-standing trauma. [AdvocateDaily.com]
7. Shaffer, Martha and Nicholas Bala, “Wife Abuse, Child Custody and Access in Canada,” in Geffner, R. et al., The Effects of Intimate Partner Violence on Children. New York: Hawthorne Press, 2003. 253.

Post publication Comment (November 5, 2019)

Ontario Association for Chiefs (OACP) was contacted for comment regarding this article. Joe Couto, OACP Director of Government Relations and Communications  responded “The OACP is working with the Canadian Association of Chiefs of Police on a national intimate partner violence strategy to be launched later this month. Given this, we are not addressing issues involving IPV until the strategy is made public”.