Can a criminal law omnibus bill meet the needs of women fleeing abuse?

According to a 2016 report from Canada’s Chief Public Health Officer, only about a third of women who are abused by their partners call the police. While this is better than the 10% reporting rate for sexual violence, it is still very low compared to reporting rates for most other crime.

Bill C-75, An Act to amend the Criminal Code, the Youth Criminal Justice Act and other Acts, introduced by federal Minister of Justice Jody Wilson-Raybould on March 29, 2018, has the potential to increase those low reporting rates by offering some improvements to the criminal law response to family violence.

What does it offer?

Bill C-75, weighing in at more than 300 pages, is primarily a response to the Supreme Court of Canada decision in 2016 in the Jordan case. Many of the proposed reforms are intended to speed up passage of cases through the criminal court process while ensuring equitable treatment for marginalized and vulnerable people who have been charged with criminal offences.

For instance, preliminary inquiries, hearings that take place to determine whether there is sufficient evidence for the Crown to take a case to trial, will be eliminated except in the most serious of cases in an attempt to move less serious cases across the finish line more quickly.

A number of changes to the bail process appear in Bill C-75, intended to address the overcrowding of detention centres, which are filled with people who have not yet been found guilty of an offence. Justices are being urged to use a “principle of restraint” when deciding whether or not someone should be held in custody rather than released on bail. If this bill passes, the court will be required to consider the circumstances of accused persons from vulnerable, marginalized and Indigenous populations at the bail stage to minimize the likelihood that conditions will be imposed that set them up to fail and then face additional charges.

No doubt in response to the Gerald Stanley case (the Saskatchewan farmer acquitted of killing Colten Boushie, an Indigenous youth, by an all-white jury), Bill C-75 eliminates the ability of Crown Attorneys and defence lawyers to use peremptory challenges to get rid of prospective jurors they don’t like.

Notably missing from the Bill is any relief from the regime of mandatory minimum penalties introduced by Stephen Harper’s Conservative government and, at the time, loudly decried by the Liberal opposition.

Defence lawyers are not happy with Bill C-75: they had hoped to see an end to mandatory minimum sentences (as had many women’s equality advocates); are concerned that eliminating preliminary inquiries will not speed matters up and will take away an important opportunity for the defence to assess the Crown’s evidence, and worry that ending peremptory challenges could result in even less diversity on juries.

Intimate partner violence

While not making the headlines as much as other provisions of Bill C-75, there are a number of clauses that address intimate partner violence.

If the bill passes, the Criminal Code will impose a reverse onus at bail on people accused of committing an offence involving violence against their intimate partner if they have been previously convicted of an act of intimate partner violence. In most bail hearings, the onus is on the Crown to prove why conditions should be placed on the accused. In a reverse onus situation, the accused must demonstrate on a balance of probabilities why he should be released from custody or why he should not have conditions placed on him.

This bill proposes to make strangulation, choking and suffocation elevated forms of assault, as defined in the Criminal Code. This is important, because all of these forms of assault are red flags for possible homicide in the future. Perhaps with more serious consequences for an abuser who has tried to strangle, choke or suffocate his partner, there will be a reduction in domestic homicide numbers.

Passage of the bill will also mean that the Crown can seek a higher maximum penalty when the accused is convicted on indictment of a second or subsequent offence involving intimate partner violence. In other words, in more serious cases, repeat offenders will face more serious penalties.

Evidence of intimate partner violence will become an aggravating factor – judges must consider both aggravating and mitigating factors when imposing a penalty on someone who has been found guilty – for sentencing purposes.

The definition of intimate partner will be broadened to include both current and former spouses, common-law partners and dating partners under the proposed reforms.

Unintended negative consequences

Bill C-75 has a long way to go before its many provisions are passed into law, and that is a good thing.  The clauses related to intimate partner violence look good at first blush but, as we have learned the hard way, there are often unintended negative consequences when legislation is passed too quickly without thorough examination and consideration by experts.

For example, even at an initial look, I have some concerns about how the clauses to tighten up bail in intimate partner violence cases will fit with the clauses intended to release more people on less restrictive conditions more quickly.

And, as we have learned in family court, changes in the law mean little on the ground if they are not accompanied by good education for all those who will interpret or apply those new laws – in particular, defence lawyers, Crowns, justices of the peace and judges.

Follow the progress of this bill so you can make submissions to the hearings that will take place when it is sent to Committee for review following Second Reading. Make sure it is legislation that will really improve the situations of women and children fleeing abuse.

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