By Elizabeth Sheehy and Isabel Grant
A woman is killed by her current or former partner every six days in Canada. Indigenous women are killed by their intimate partners at a rate eight times higher. In Peel (Toronto) alone, five women were killed in January 2018 — the same number of intimate femicides in Peel for all of 2017. Domestic violence is a national crisis.
The federal government's Bill C-75, introduced last week, proposes changes to the criminal law response to domestic violence. But the bill will do too little, too late. What we need is a comprehensive, integrated strategy to prevent and respond to domestic violence, and resources to support women extricating themselves from violent relationships.
What would Bill C-75 do?
Bill C-75 reverses the onus for bail. A person charged with an offence involving violence against an intimate partner, who has a record of such offences, will now have to show cause why they should not be held in custody. This provision is justified by the fact that half of domestic violence offenders breach bail and half of these involve assault, criminal harassment and sometimes even murder.
This provision is narrow, however, and will not apply to those who lack a criminal record for domestic violence, including convicted persons who received absolute or conditional discharges.
Bill C-75 would render assaults involving strangulation a more serious level of assault, equivalent to assault causing bodily harm. Strangulation raises the risk of intimate femicide seven-fold and is thus a significant warning sign. The provision relieves the prosecutor of the burden of proving bodily harm, which is not always detectible in spite of the serious risk to life that strangulation poses.
The bill takes some positive steps but continues the piecemeal approach to domestic violence by government.
The bill would also expand the sentencing provision that requires judges to treat as aggravating the fact that domestic violence was committed against a spouse, to include dating partners as well as former partners. This is particularly important given that women are at greatest risk of lethal violence when they leave a relationship.
Bill C-75 would allow a court to raise a maximum sentence for a domestic violence crime for someone with a record of such offences. Unfortunately, this reform misses the boat. Canada does not have a problem of low maximum sentences constraining judges who want to sentence men harshly. In fact, maximum sentences are rarely imposed for domestic violence.
Further, given the prevalence of systemic discrimination, there is a serious risk that this provision will be applied disproportionately to Indigenous and other marginalized persons.
In all, the bill takes some positive steps but continues the piecemeal approach to domestic violence by government. Criminal law alone cannot prevent domestic violence: it is an after-the-fact response to violence that has already damaged, and sometimes ended, the lives of women and their children. And some aspects of the bill may be punitive to women who resist domestic violence with violence.
So what else should be done?
What women urgently need are resources, such as safe housing, social welfare, and legal advice to escape violence and navigate the criminal justice system. They need the family court and child protection systems to "see" the violence and coercive control that places them at risk. And they need the police to respond effectively to keep violent men away from them.
New Zealand's Family Violence Death Review Committee has undertaken a major study of its "family violence systems," of which criminal law is only one. The social welfare, health, child welfare, housing, education and family law systems all intersect. The Committee has worked with representatives of these systems to develop an integrated family violence safety system.
Canada could learn from New Zealand.
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We should consider a permanent, national, governmental body dedicated to reviewing each case of domestic homicide, capable of securing the confidential records of all agencies, negotiating with them on how to prevent such killings, and securing an integrated domestic violence safety system. And it must be staffed by experts — especially front-line feminists, whose expertise and commitment uniquely qualifies them for leadership on violence against women.
Bill C-75 is a small step forward, but stops short of tackling the crisis of intimate femicide and domestic violence. We can and must do better.
Elizabeth Sheehy is a professor emerita of law at the University of Ottawa, Faculty of Law.
Isabel Grant is a professor of law at the Peter A. Allard School of Law at the University of British Columbia. They are both expert advisors with EvidenceNetwork.ca.
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