In cases involving family violence, the intersections between family and criminal court can be challenging. The two court systems have different purposes, different standards of proof and do not share information or communicate with one another. When a woman whose abusive partner has been criminally charged begins family law proceedings, she can find herself overwhelmed by these two legal systems that, all too often, seem to operate at odds with one another. Add to this the reality that – unfortunately – not all judges fully understand family violence or the complex relationships between the two legal systems.
That’s why I celebrate decisions from either court in which the judge does recognize these complexities. Here is one such case; a criminal decision that is tied closely to a family law case.
The husband and wife were married for a number of years and had two children together. After they separated, and after initial family court proceedings had concluded, the husband was charged with seven counts of sexual assault, two counts of assault with a weapon and one count of assault with respect to incidents that had taken place during the marriage.
Guilty!
In the criminal trial, Justice Monahan found the husband guilty of all but one of the charges. The husband appealed his convictions on several grounds. I’m only looking at one of them here: the relevance of family court proceedings on the credibility of the wife’s evidence in the criminal trial.
The husband claimed that his wife had fabricated the allegations, her motive being to benefit in the family law case if he were found guilty of criminal offences.
When the wife testified at the criminal trial, she explained that she had not initially intended to report the abuse to the police at all. The parties had separated, and she was involved in family law proceedings. That was what mattered to her.
However, following a case conference in family court, she received a video from the husband’s father showing a woman being pushed into a grave and buried alive. At this point, she feared for her life, so made a statement to the police about repeated and serious abuse, and they charged the husband.
Challenging myths
In making his decision, Justice Monahan noted that the presumption of innocence is “a cornerstone of our criminal justice system.”
“The presumption of innocence, and along with it the standard of proof beyond a reasonable doubt, are important and necessary safeguards to ensure that no innocent person is convicted of an offence and wrongfully deprived of his or her liberty.”
Justice Monahan’s decision offered a straightforward and helpful definition of ‘reasonable doubt:’
“A reasonable doubt is not an imaginary or frivolous doubt. It is not a doubt based on sympathy for or prejudice against anyone involved in this trial. It is a doubt based on reason and common sense, one that arises logically from the evidence or lack of evidence.”
In assessing the wife’s credibility, Justice Monahan noted that such assessments cannot be based on stereotypes, emotional evaluations or the demeanour of the witness. He then pointed out the particular importance of avoiding myths and stereotypes when assessing the credibility of sexual assault survivors:
“It is now widely understood that it is an error of law to assess a sexual assault complainant’s credibility based on assumptions about how a victim of sexual assault is expected or supposed to react to the assault.”
Also of interest in terms of the challenges many women face when they are involved in both family and criminal law proceedings, the trial judge found that, even though she referred to her family court application a number of times while giving a statement to the police, this did not mean her memory of what had happened was not independent:
“I find the complainant’s evidence to be detailed, clear and consistent . . . .[A]t trial, the complainant testified without the assistance of the Family Court Application or any other notes and clearly appeared to have an independent recollection of the relevant events. . . . Nor do I find that the complainant had a motive to lie, namely, to advance her claims in the family law litigation. . . . If that alone were sufficient grounds to support a finding that a complainant in a sexual assault case had a motive to lie, it would constitute a significant barrier to the reporting of sexual assaults by complainants who had been married to the alleged abuser.”
In its unanimous decision to uphold the trial decision, the Ontario Court of Appeal wrote:
“The mere existence of an outstanding family law claim does not, on its own, provide evidence of motive to lie. While it may be a feature in the ultimate determination, standing alone as it was here, it is not. “
Because the Court of Appeal upheld the trial judge’s decision, it now stands as a precedent for all of Ontario. This offers an important step forward in how both family and criminal courts respond to women who are dealing with intersecting and overlapping legal issues as the result of family violence.