“No Dear, We Know What’s Best For You”

Judges in our criminal courts often tell drunken drivers they’ve just convicted, “Ma’am, please remember, it’s not a crime to drink, but it is one to drink and then get behind the wheel of a vehicle”.  

With the not unsurprising rise of domestic assault related charges in this maddening COVID year of 2020, judges are likely now saying more and more often, “Sir, it’s understandable to be frustrated and angry, but to lash out physically is criminal and not acceptable.”

Domestic violence is generally defined as occurring when one partner in an intimate relationship abuses the other. Under Ontario’s domestic violence strategy, the police have a mandatory charging policy in such cases.  The police must lay criminal charges against the partner they deem to be the main aggressor (“the defendant”), if they have reasonable grounds to believe that violence has occurred, regardless of whether the other partner (“the complainant”) wants any charges to be imposed.

Domestic violence cases often fit into one of these three broad categories:

1. The allegations are serious and may include some of the following: visible injuries, history of prior abuse, dangerous emotional instability within the defendant, and / or a power imbalance in the relationship.
2. The allegations are relatively less serious and occurred during one particular stressful or unusual incident, with no prior history of violence.
3. The allegations prove to be false or significantly diminished. The complainant lied or grossly exaggerated to the police for reasons that often involve anger, jealously, spite, desire to seek advantage in family court proceedings, and / or emotional instability.

When a defendant is charged by the police, Ontario’s policy regarding release conditions generally dictate that they include terms that, while the case is ongoing, the defendant is not to have any contact whatsoever with the complainant and is not to attend at the complainant’s residence, which is very often a shared home, meaning the defendant needs to find somewhere new to live.  

The defendant is then provided with a first court date, which is typically about eight weeks later.  This is the first court date, not the final one. After that first court date, a domestic violence case can take anywhere from a few more months to well over a year, before it is ultimately concluded.

This usually means for a defendant with a spouse, children and shared matrimonial home, they are required to stay away with no contact whatsoever for several weeks or months before their release conditions can be changed, or their case resolved. 

However, in many instances, there is a complainant telling anyone who will listen that they want contact, wish to reconcile, and are legitimately not feeling fearful, threatened, or intimidated.  These complainants do not want to be forced away from their long-time partners for weeks or months, forbidden to have any contact at all, while the proceedings are before the courts.  

There’s a better way.  Instead of one just one uniform set of release conditions that apply to all, let’s come up with a number of different sets of conditions, with varying degrees of restrictions, and apply them fairly and appropriately, as the unique details of each individual case dictate.  Still not a perfect system, but getting there.

Our current “one policy fits all” approach does not fit at all and often causes more harm than good to relationships and families. In these instances, it is offensive and wrong for the state to take the position, “no dear, despite what you say or want, just listen to us, we know what’s best for you.”