The Ontario Court of Appeal recently overturned a sentence imposed by a trial court judge in a case in which a woman, a recent immigrant from Iran, had experienced brutal physical and sexual abuse at the hands of her husband, also from Iran.
He was convicted of both assault and sexual assault at trial, but matters went off the rails at the sentencing stage. Justice Gorewich correctly identified the man’s lack of a criminal record as a mitigating factor when determining the penalty for these convictions. However, he also noted that there was a “significant cultural gap” between behaviour that is accepted in Canada and in Iran and made mention of the cultural impact of changing countries.
Justices Benotto, Hoy and Doherty of the Court of Appeal did not agree with this analysis and replaced the 18-month sentence with a sentence of four years. In making their decision, the Justices wrote that “cultural norms that condone or tolerate conduct contrary to Canadian criminal law” cannot be used as a mitigating factor in sentencing. As the Justices wrote:
“Cultural differences do not excuse or mitigate criminal conduct, [because, if that were so] some women in Canadian society would be afforded less protection than others [and] it would create a second class of person in our society – those who fall victim to offenders who import such practices. All women in Canada are entitled to the same level of protection from abusers.”
Abuse cuts across cultures
While the Court of Appeal’s decision is to be commended – by all accounts, this man engaged in ongoing and brutal abuse of his wife and their two sons – we need to remember that there should be no bragging rights for Canada when it comes to the issue of violence against women. Many women are second-class citizens, not just those whose abusers “import” their violence from other places.
Certainly, there are laws, but those laws have not translated into lives free from violence for women in this country, regardless of cultural, religious, racial or ethnic background.
Only about 25% of women who are abused by their partners report to the police and fewer than 10% of women who are sexually assaulted do so. Conviction rates for all forms of violence against women are low and penalties are often minimal.
Furthermore, some groups of women born and raised in Canada — women living in poverty, Indigenous women, women with disabilities – face more barriers and a less positive response from the criminal system than women with class and race privilege. The same is true for Canadian born and raised abusers — those who are white-skinned, have “good” jobs and are otherwise upstanding members of the community are advantaged compared to men who do not have those privileges.
Remember religious arbitration?
Reading this decision put me in mind of the fight in Ontario to eliminate the use of religious laws in the arbitration of family law disputes. This issue came into the public eye in late 2003, when a group of conservative Muslims declared that it was going to establish a “Sharia family court” in Ontario, where separating couples could use Muslim family laws to resolve their issues.
As the result of a strongly fought campaign led by the Canadian Council of Muslim Women in coalition with women’s equality organizations, violence against women groups and other religious organizations, the provincial government introduced and passed legislation that reflected then-Premier Dalton McGuinty’s statement made in September 2005 that “one law will apply to all citizens and that is Ontario and Canadian law.”
“there was no choice for us as Muslims and for us as women: we could not remain silent. Many women’s and human rights organizations became partners as the issue was seen as a significant threat to all women’s equality rights. . . . It was an arduous process to maintain that women’s equality rights should be embedded in both religious freedom and multiculturalism and that neither should undermine this fundamental right of equality.”
We are not there yet
While the outcome of the sharia campaign was a positive one, like the Court of Appeal decision above, there are negative nuances to it.
First, there is no doubt that racism and Islamophobia contributed to the public’s outcry against the use of sharia law in Ontario. What many people didn’t realize or chose to ignore was that many non-Muslim women face pressure from their cultural communities and/or religious leaders to set aside their rights under Canadian and Ontario family law in favour of conservative or fundamentalist approaches to the resolution of family law issues.
Second, the impact of the changes to the law has not been fully felt by women. Women who are members of all conservative religious communities continue to face community censure when they leave even an abusive marriage and are confronted with pressure to follow religious edicts, many of which do not reflect a commitment to women’s equality.
The Toronto Star editorial celebrating this Court of Appeal decision ends by saying: “Justice for every woman. That is the norm in Canada. . . “
I would have said: “Justice for every woman. That needs to be the norm in Canada.”