We need more than laws

Note: This article is adapted from one originally published by The Lawyer’s Daily (www.thelawyersdaily.ca), part of LexisNexis Canada Inc.

Since Gabriel Wortman killed 22 people in Nova Scotia in April, there has been much talk about what needs to be done to stop anything like this from happening again.

While the police were slow to acknowledge it, it is now established that Wortman had a long history of violent and threatening behaviour; in particular, towards his common-law partner. This should not have come as a surprise; research (much of it from the United States, the mass killing capital of the world) has established the link between domestic violence and mass killings, especially shootings.

It is disappointing to those of us who work on the issue of gender-based violence, as it should be to everyone, that Wortman’s violence was only taken seriously when he killed 22 people, as opposed to during the many years when he was victimizing his partner. Had authorities responded earlier, she might have been spared years of abuse and 22 other people might still be alive.

Finding the right tools

But did we have the tools that would have allowed us to stop Wortman earlier? Certainly, we have some of them.

Wortman, it appears, had a large cache of weapons, many of them illegal. Had the police followed up on reports by neighbours and acquaintances that detailed his extensive weapons collection as well as his erratic behaviour, perhaps he could have been stopped before he used some of those weapons to kill those 22 people.

Physical and sexual abuse, as well as stalking, are criminal offences in Canada. However, without the participation of the victim of the crime, it is difficult for those crimes to be prosecuted. Women, the primary victims of the most serious forms of abuse, have many reasons for not wanting to report that abuse to the police; key among them their fear that the criminal system will not be able to protect them from ongoing and more serious abuse.

We don’t know whether Wortman’s partner reported him to the police, but we do know that at least one neighbour called the police more than once about abuse she had witnessed, the supply of weapons and her own fear of him based on his threatening behaviour towards her. No charges were laid against him for any of those reports, and the neighbour eventually left the community, such were her fears for her safety.

There is no way to know what the outcome would have been had Wortman been charged with any domestic violence related charges. It is too often the case that the first round of such charges, especially if the accused is a so-called upstanding member of the community, is treated fairly lightly by the criminal system: serious charges are bargained down to less serious ones, charges are withdrawn in exchange for the accused entering into a peace bond, penalties are minimal (especially when the accused has a job). Outcomes depend, to some extent, on the level of knowledge and attitudes about domestic violence on the parts of those involved with the case.

A possible new approach

Section 76 of Great Britain’s 2015 Serious Crimes Act created a new offence: controlling or coercive behaviour in an intimate or family relationship.

A person can be found guilty of this offence if he “repeatedly or continuously engages in behaviour towards another person that is controlling or coercive” if the two people are personally connected, the behaviour has a serious impact on the victim and the person engaging in the behaviour knows or ought to know that the behaviour will have a serious impact.

Such a law, in Canada, would change the criminal law response to intimate partner violence considerably. It would expand the focus of the law from discrete incidents to patterns of behaviour. A person could be found guilty whether or not physical abuse was involved. Presumably, the criminal standard of proof – beyond a reasonable doubt — could be reached on the totality of evidence relating to a number of incidents and behaviours even if it were not reachable on any one of them alone.

As Carmen Gill, of the University of New Brunswick, noted to the National Post, individual offences don’t always fully capture the ongoing coercive control in many abusive relationships. This law gets around that problem.

Coupled with changes to Canada’s Divorce Act, to come into effect in March 2021, and which will provide a definition of family violence that includes specific reference to patterns of coercively controlling behaviours, this law could help keep women safer. It might also stop a mass killer before he gets started.

Still not enough

However, a new law on its own, no matter how good, is not a magic wand. We still need to address societal understandings of and attitudes about gender-based violence. All those in both the family and criminal systems continue to need more education so they properly understand the dynamics of intimate partner abuse. And, there needs to be accountability at every step.

Canada should give serious consideration to developing legislation similar to Great Britain’s Serious Crime Act, but ensuring an adequate legal response to gender-based violence is not as easy as passing a new law and ticking some boxes on a form. We need to ensure that women feel safe to speak up and are believed when they do.

After all, keeping women safe from intimate partner abuse will make everyone in our communities safer.