Recent news stories about three women in different parts of Canada who had dealings with the criminal system because of violence they were subjected to has me thinking once again about the vast chasm that can exist between law and justice.
Canada’s criminal response to gender-based violence has been, generally, spotty. Laws are not always what they should be. For instance, many of the most insidious forms of intimate partner violence, including coercive controlling behaviours and financial and emotional abuse, do not constitute criminal offences. There is no distinct offence of domestic violence in the Criminal Code. There have been few discussions about a role for transformative justice as a response to gender-based violence.
Even when reasonably well-written laws are in place, their enforcement gets an overall failing grade. Perpetrators are not charged when they should be. Charges do not always lead to prosecutions. Even when there is strong evidence – evidence that would meet the criminal “beyond a reasonable doubt” standard of proof in any other kind of case – prosecutions do not always lead to appropriate outcomes. Penalties are often inadequate.
“I didn’t commit a crime. He did.”
Nova Scotia’s Public Prosecution Service Policy sets out how domestic violence victims are to be treated if they fail to appear in court. The first option is for the Crown Attorney to seek an adjournment. While asking for a warrant is an option:
“Obtaining a warrant is not intended to punish the complainant/victim for being reluctant to testify, but rather as a means of keeping the prosecution alive in the hope of protecting the complainant/victim in the short and long terms.”
The November 2019 experience of Serrece Winter, a Black and Indigenous woman with mental health issues, tells a very different story. When she did not show up to testify against her sometime-boyfriend, it was because she was afraid of him. Little wonder: he was facing 14 charges related to his abuse of her.
A warrant was issued and Winter, who has no criminal record, was arrested and placed in a cell at Halifax police headquarters. She told officers that she had PTSD and was bipolar but no medical attention was provided and she was not told she had the right to call a lawyer.
Shortly after being placed in the cell, she banged her head against the concrete wall more than three dozen times. Instead of offering medical support, seven police officers – six of them men – entered the cell and strapped Winter to a restraint chair, during which time two officers covered her mouth and chin with their hands.
Fast forward to November 2020: all the charges against Winter’s boyfriend were dropped because she would not testify. Winter is representing herself on a charge of assault because she allegedly kicked an officer’s leg during her arrest last year. The boyfriend faces a new batch of charges related to his abuse of Winter. She plans to testify this time, but says she no longer feels protected by the police.
Law? Maybe. Justice? Definitely not.
“A shadow of the cheerful girl I used to be”
Shawn Wood of Sudbury assaulted his girlfriend with a metal tube. Her ribs were broken and she sustained a head injury. The victim, in her victim impact statement, said:
“I was terrified for my life that night. You tortured me, your mind games, your controlling issues. I was your prisoner for a long time. . . You destroyed the girl I used to be. Now, I am just a shadow of the cheerful girl I used to be.”
Wood already had a record for domestic violence from 2018 and 2019 and had attended the Partner Assault Response program as well as anger management and substance abuse courses. Nonetheless, and despite the injuries suffered by his victim, who now has extreme PTSD, Justice Serre seemed impressed with his promises to change and professed regret for his actions, and did not send him to jail. Wood must live under house arrest for nine months, followed by 12 months of probation during which he can have no contact with his former girlfriend.
Law? Maybe. Justice? Definitely not.
“Nothing worked”
(Thanks to Matthew Behrens for bringing this case to my attention.)
Helen Naslund, a 56-year-old Alberta woman weighing only 100 pounds and standing barely five feet tall, is going to prison for 18 years after pleading guilty to killing her abusive husband in September 2011. That day, his threats of violence had steadily increased; he blamed her for a breakdown of the haying machine, threw wrenches at her, threw everything from the kitchen table on to the floor and ordered her and their son around with a gun. This followed more than three decades of extreme abuse from which she had repeatedly tried to escape, at times by attempting to kill herself.
The Crown Attorney acknowledged that there had been “many” instances of physical and emotional abuse over the years of the marriage. The statement of facts noted that “due to a history of abuse, concern for her children, depression and a learned helplessness, [Naslund] felt she could not leave.”
Her lawyer did not introduce the battered woman syndrome defence, but supported his client in pleading guilty to manslaughter.
In sentencing Naslund, Justice Sanderman described what she did as: “a callous, cowardly attack on a vulnerable victim in his own home,” claiming that Naslund had “other options” open to her.
According to Ottawa U law professor Elizabeth Sheehy, the 18-year sentence meted out to Naslund is one of the longest received by a victim guilty of manslaughter in a domestic violence situation, noting that the majority of cases result in sentences of less than two years.
Law? Maybe. Justice? Definitely not.
These three strikes against the criminal response to gender-based violence are just the most recent in a very long list. It’s time to call the system out and look for something better.