What’s law got to do with it?


Some recent and pending law reform has me thinking, not for the first time and likely not for the last, about how much faith our society places in “the law” and how, often, that faith proves to be misplaced.

Don’t get me wrong. I am a lawyer, after all, and I think that law can play a positive role in our communities. At its best, it is a tool for social justice. Much of my work involves helping women understand how the law can assist and protect them and their children when they have been subjected to gender-based violence. I also spend a lot of time engaged in law reform advocacy, which I would not do if I didn’t see some value in those laws.

However, I can see the negative impact of laws which, too often, serve as as a means to maintaining the status quo; a status quo that excludes many in our communities. 

Maybe most importantly to me, I think that we have collectively handed too much power over to the law. In a way, we absolve ourselves of our own responsibility for creating and maintaining an equitable and safe society by assuming that laws will take care of all of that for us.

Clare’s Law

Saskatchewan recently passed new legislation, officially called the Interpersonal Violence Disclosure Protocol Act and unofficially known as Clare’s Law. Named after an English woman who was killed by her ex-boyfriend who had a capacity for violence, it creates a process by which someone can find out whether they may be at risk of harm at the hands of their intimate partner.

The Bill, passed in June, authorizes municipal police forces to disclose risk-related information about someone to a current or former intimate partner if that information will assist the person make decisions related to their safety. Under the new legislation, the police can also make the decision to release information, even if no request has been made, if to do so would protect a potential victim.

Anyone seeking information must make an application to their municipal police force, which will be reviewed by a committee before recommendations are made to the police about whether or not action should be taken. Regardless of who makes the application – the potential victim or a third party – only the victim receives the information.

Saskatchewan, which has the highest domestic violence rate in the country, is the first Canadian jurisdiction to implement this type of legislation, but other provinces are considering following a similar path.

Troubles already

Only a few months old, the legislation already faces a significant challenge. The RCMP, which has responsibility for law enforcement anywhere in the province that does not have a municipal police force, says the law violates section 8 of the federal Privacy Act, which reads:

“Personal information under the control of a government institution shall not, without the consent of the individual to whom it relates, be disclosed by the institution. . . “

The RCMP’s position is a both a surprise and a disappointment to those, like Saskatchewan’s women’s shelters and others, who worked hard to see this legislation pass. A petition has been launched, calling for federal Minister of Justice David Lametti to amend the Privacy Act by adding  a circumstantial provision to permit disclosure of personal information in order to protect someone “from interpersonal or domestic violence.”

Even if you live outside Saskatchewan, you can sign the petition, but you must do so before November 5th, which is less than a week away.

Amending the Criminal Code

Much of the abuse in intimate relationships is not physical. Many abusers engage in a pattern of psychological abuse designed to intimidate and isolate their partner while not leaving any marks or physical injuries. This kind of abuse is called coercive controlling conduct, and almost none of it constitutes a criminal offence.

Canada’s Criminal Code does not have a provision dealing specifically with domestic or family violence; rather these offences are governed under general offences such as assault, sexual assault, forcible confinement, uttering threats and criminal harassment. This leaves many women, whose partners are using emotional rather than physical or sexual abuse, with no legal recourse.

A member of the federal NDP recently introduced a private member’s bill – Bill C-247 – to amend the Criminal Code to add a new offence:

“Everyone commits an offence who repeatedly or continuously engages in controlling or coercive conduct towards a person with whom they are connected that they know or ought to know could, in all the circumstances, reasonably be expected to have a significant impact on that person and that has such an impact on that person.”

This would be a helpful measure but, as a private member’s bill, it is unlikely to pass.

It’s not enough

Both Saskatchewan’s Clare’s Law and the possible addition of coercive control to the Criminal Code have the potential to make a positive difference for victims and survivors of intimate partner abuse.

But, on their own, they are not enough. Laws –especially criminal laws — are, by definition, reactive. They don’t do much to prevent a harm from being done. In the case of gender-based violence, despite many new and improved laws over the past several decades, the rates of violence and abuse — including acts of homicide — have remained largely the same.

Women are, understandably, wary of relying on the law to protect them. Only about 25% of victims of intimate partner abuse report that abuse to the police; only about 10% of sexual assault victims do so.

The road to convincing women that the law has something to offer them will be a long one and will require that governments put financial resources to the task.

Further, as we have seen time and again, unless new laws are accompanied by strong regulations to ensure enforcement; education and training for those who must interpret and apply them; systemic accountability, and public education, they are little more than words on a page.

Whatever social problem we seek to fix – gender-based violence, poverty, racism, climate change – we must find ways to fully engage all of our communities in finding the solutions rather than handing that responsibility over to elected officials and the laws that they create. Only then will the law give justice to all.

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