Perhaps the biggest lesson I’ve learned from more than two decades of being involved with systemic law reform advocacy is the truth of the saying “be careful what you wish for.” All too often, well-intentioned changes in law or policy carry with them negative consequences.
The mandatory charging policies in place across Canada provide an excellent example. Introduced in the mid-1980s, the policies were intended to ensure that criminal charges were properly laid in domestic violence cases. At the time, little specialized training was available for police officers, and there was not a lot of public awareness about family violence. As a result, when police responded to a “domestic,” they often talked to the two people together, asking the woman whether she wanted to charge her partner. Not surprisingly, most women said no. The new policies ensured, in theory, that, based on the evidence, police officers, not victims, would determine whether or not a criminal charge should be laid.
This made sense at the time. However, over the three plus decades since, circumstances have changed, and the policies now often have negative consequences, unintended and unimagined by those who introduced them, on women who call the police for assistance because of intimate partner violence (IPV).
In particular, these policies have led to women being inappropriately charged. This creates serious difficulties for the woman: she may be removed from the home; be subjected to bail conditions that do not allow her to see her children; be suspended or fired from her job, leaving her in economic difficulty; the abuser may try to manipulate her into breaching bail conditions; evidence of the criminal charge will have a negative impact on her family law case, and so on.
One of the best ways to ensure that unintended negative consequences are considered when GBV laws, policies and strategies are being developed is to implement a National Action Plan that would create a systems-wide framework.
Ontario NDP MPP Jennie Stevens recently introduced a private member’s bill (Bill 274) that would have created a system whereby someone could find out whether their partner had a history of abusive behaviour. It was a smart bill, and Stevens engaged in some consultation as she developed it. However, there was no formal, structured systemic process like a NAP to ensure that possible negative consequences were fully considered. It was defeated at second reading, without even being sent to committee hearings.
Jill Dunlop, the Associate Minister of Children’s and Women’s Issues in Ford’s government, dismissed the Bill for having:
“holes and unanswered questions [in terms of] how it impacts minority communities. . . The way the proposed legislation is written leads me to believe there wasn’t sufficient consultation with organizations in these spaces.”
Rich words from the government that disbanded the violence against women roundtable and failed to implement the violence against women plan passed by the Kathleen Wynne government just months before the provincial election, both of which would have brought a systems-wide lens to consideration of the proposed legislation.
Last fall, NDP MP Randall Garrison introduced a private member’s bill (Bill 247) to make coercive controlling behaviour in intimate relationships a criminal offence. The bill was well-intentioned, but was written with virtually no consultation with those with lived or learned expertise on the subject.
On first thought, especially for those who don’t know a lot about intimate partner abuse, the bill sounds good. Canada has no criminal laws specific to intimate partner abuse. Coercively controlling behaviour can have severe and long-term impacts on those who are victims of it, and people who engage in it should face consequences.
However, there are negative consequences that need to be carefully thought through. As with mandatory charging, making coercive control a criminal offence creates possibilities for victims to be wrongly charged. Criminal law is designed to respond to individual and discrete acts, whereas coercive control is a pattern of escalating behaviours that builds over time. Jurisdictions that have criminalized coercive controlling behaviours report minimal impact on their rates of IPV.
As a result of Garrison’s bill, the Standing Committee on Justice and Human Rights held hearings and, in April, released a report, “The Shadow Pandemic: Stopping Coercive and Controlling Behaviour in Intimate Relationships.” It’s a good report and, notably, its second recommendation is:
“That the Minister of Justice engage with his provincial and territorial counterparts to initiate a taskforce of experts with a mandate to review existing federal criminal legislation using a gender-based analysis plus . . . and make recommendations. . . . “
Last week, Bill C-3 received royal assent. This bill requires all new federally appointed judges to agree to take educational sessions on sexual assault law and social context, including systemic racism and discrimination.
This is good news; but, with a formal and comprehensive consultation process, it could have been better news. It applies only to new judicial appointments and only to those appointed to superior courts. Judges appointed to provincial courts, where most sexual assault charges are dealt with, are not required to participate in education; nor are current judges. The law only speaks to education about sexual assault – what about educating family court judges about family violence?
The now well-known case of the Kitchener woman who was charged with breaching a criminal court publication ban after her former husband was criminally charged with sexually assaulting her provides yet another example of how law reform can have unintended negative consequences.
Publication bans were created to protect the privacy of victims (and sometimes witnesses) in sexual assault cases, with the hope that this protection would make more survivors comfortable in reporting what had happened to the police.
However, a sexual assault survivor who finds herself the accused and winds up with a criminal conviction because she sent the trial transcript by email to some family members and friends is not justice by any definition of the word.
Bringing it together
These are all important issues — and there are many more — that require a systems-wide analysis in order to ensure that legal and policy responses will work and avoid unintended negative consequences.
This is why Canada needs a National Action Plan on Violence Against Women and Gender-Based Violence. A national plan, supported at the provincial/territorial level, with secure and adequate funding and leadership roles for community-based experts and survivors, would create a framework within which law, policy, service and program delivery, infrastructure models and prevention activities could be developed in a wholistic and systemic way. Decisions would considered in the broadest possible way. Multi-year, indeed multi-generational, strategies and actions could be developed. Those most affected would have a place to share their experiences and perspectives.
Now, it is time to encourage the politicians and senior government decision makers to take the next step in building a NAP.
Will this mean that there is never again an unintended negative consequence to a policy or law? Of course not, but the coordinated approach of a NAP would mean there were far fewer. It would also create the opportunity to move from responding to GBV after it has happened to stopping it from happening.
What a thought for a spring morning!