When Farrah called the police for help during an assault by her husband, Paul, she had no idea that she would be the one to be charged. Paul was coercively controlling towards Farrah, often threatening to withdraw his sponsorship of her if she “misbehaved,” and was physically violent from time to time. She had never called the police before, because Paul had told her she could be deported if she did so.
This time, Paul grabbed her around the throat and tried to strangle her. In her attempt to get him away from her, she scratched his face. She then ran into the bathroom and dialed 911 because she was afraid he was going to kill her.
When the police arrived, Paul showed them the scratches on his face and said Farrah had attacked him for no reason. Farrah, whose English was limited, was so terrified by the situation that she wasn’t able to tell the police a coherent story about what had really happened.
Based on their initial assessment of the situation and Ontario’s domestic violence mandatory charging policies, the police charged Farrah and took her into custody, pending a bail hearing. Farrah and Paul’s baby, who was sleeping during the assault, is now in Paul’s care, and Farrah is prohibited from returning to the family home or having contact with her infant daughter.
What is mandatory charging?
In the mid-1980s, mandatory charging policies, often accompanied by vigorous prosecution policies, came into effect across Canada. These policies directed police officers to lay charges whenever they believed there were “reasonable and probable grounds” to do so. Put another way, police were expected to lay charges where they believed the evidence was likely to lead to a guilty verdict.
At the time that mandatory charging policies were put in place, police officers had little to no training about the dynamics of domestic violence. It was common for an officer responding to a “domestic” to ask the woman, while her partner — and possibly their children — were standing close by, whether she wanted to charge her husband. Not surprisingly, most women said no.
There were a number of reasons for this:
- Fear that the abuser would be angry if he were charged, which might lead to an escalation in violence
- Financial concerns should the primary breadwinner be arrested
- Shame about the abuse
- Love for the abuser, coupled with the belief or hope that he would change and the abuse would end
- Distrust in the police
Mandatory charging policies were intended to relieve victims of intimate partner violence — most of them women — from the responsibility of making the decision about whether or not their partner should be charged. The hope was that this would increase the safety of women, or at least reduce the likelihood that they would be at greater risk because of pressing charges. Mandatory charging, went the thinking, would increase domestic violence reporting rates, improve police response and increase abuser accountability. It was also hoped that placing responsibility for laying charges with the police would help to bring domestic violence out of the shadows and get rid of the idea that it was a personal problem, confined to the privacy of the family home.
A decade after these policies came into effect, the establishment of domestic violence courts in many parts of the country led to more consistent use of mandatory charging policies.
Almost immediately, the number of domestic-violence related charges laid by police increased significantly. However, it was quickly evident that it was women – those who had called the police for help – who were being arrested and charged. Initially, this was in the context of dual charging, the term used for situations in which both partners were charged by the police. Over time, increased numbers of women – women like Farrah — were being solely charged; again, even when it was they who had called the police.
In an attempt to respond to this problem and reduce the rate of women being incorrectly charged, tools were developed to assist police officers in identifying the primary or dominant aggressor before making decisions about who should be charged.
Unfortunately, even with these tools, incorrect charging of women continued. It has been clear for some time that, while these are mandatory charging policies, police are, in fact, using a lot of discretion when they make decisions about whether or not to lay charges and against whom they should be laid.
In the approximately 40 years since these policies were introduced, many concerns about their negative impact on those they were intended to protect – survivors of intimate partner violence, most of them women – have arisen, which I will explore next week in part two.
Calling for a review
There have been numerous calls for a review of mandatory charging policies. The 2022 CKW Inquest recommended that the provincial government:
Commission a comprehensive, independent and evidence-based review of the mandatory charging framework employed in Ontario, with a view to assessing its effect on IPV rates and recidivism, with particular attention to any unintended negative consequences.
The province has accepted this recommendation “in part,” while also noting: “At this time, the Ministry of the Solicitor General does not have plans to commission an independent review of the mandatory charging framework.”
provincial and territorial governments replace mandatory arrest and charging policies and protocols for intimate partner violence offences with frameworks for structured decision-making by police, with a focus on violence prevention
The time is right for a review of mandatory charging. Much has changed since the implementation of these policies, and we have had more than enough time to see how they work and don’t work. What’s needed is a comprehensive, independent review of mandatory charging that includes meaningful consultations with all stakeholders, including survivors, those who have caused the harm, women’s advocates, police officers, Crown Attorneys, family law lawyers and the judiciary.
Stay tuned. Next week, I’ll look at the challenges with mandatory charging, the negative impacts of these policies on the women they are intended to protect and some ideas for how to move forward.