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The Fly and the Sledgehammer: Why Zero Tolerance For Domestic Assault Is Here to Stay | The Defence Group

Posted by  on May 9, 2018
The Fly and the Sledgehammer:  Why Zero Tolerance For Domestic Assault Is Here to Stay | The Defence Group

Domestic violence remains a top priority for law enforcement. The police are required in most cases to accept the statement of a complainant at face value, and lay charges without much, if any, investigation. The Crown attorney prosecuting the charge seeks a finding of guilt to get the “perpetrator” into the system. The reason behind this is laudable: domestic violence is unacceptable in a modern democratic society.

However, there are many unintended consequences that flow from the zero-tolerance approach: police don’t investigate in any detail, which often results in charges that do not match the facts. Complainants are angry and upset, and in the heat of the moment will sometimes exaggerate or even fabricate allegations. On occasion, especially in a divorce/custody situation, a complainant might be tempted to make a false complaint in order to bypass the cost and delay in family court, and get the kids and the house immediately by dialing 911. If the police investigated properly, they would be able to weed out the cases that are without merit, and the ones that can be addressed without engaging the full machinery of the criminal court process. That would ensure that the legitimate and serious cases get the full attention that they deserve.

The vast majority of domestic assault charges involve first-time defendants and very minor violence. The intervention of police, and some counselling, is generally all that is required to send the message to the abuser that the police are now aware of his conduct and that it will not be tolerated. A twenty-four hour cooling-off period (where he spends the night elsewhere), and counselling, can supplement this warning and is often exactly what the complainant is seeking.

Most women (because most victims of domestic violence are women) are not asking the government to ban all contact from her husband/boyfriend, or to evict him from the home for the next several months, which is the automatic result in every case where police lay charges. The government response is like killing a fly with a sledgehammer; it is overblown. Forcibly separating the parties at the time when they most need to be able to communicate with each other, destroys relationships and wreaks financial hardship. Many of those women would not have called the police if they had known how drastic the consequences would be, and some vow not to call police in future. How does that protect the safety of the public and combat domestic violence?

The government’s “sledgehammer” approach also causes the courts to be filled with minor first-time offenders. This contributes to delay and causes the more serious cases, where further government intervention is warranted, to get “lost in the shuffle”. A far better approach would be to weed out the first time offenders with very minor violence and no injuries, and to deal with them without full-scale prosecution: if the complainant agrees, give them warnings, make them take counselling, and let them reconcile with their partner without the need to separate them forcibly for months. This is far less cumbersome and time-consuming than the “Early Intervention” programs that many courts have set up. It would have the additional benefits of reducing delay in the courts and freeing up resources to focus on the more serious cases. And if the abuser re-offends, he will rightly be severely punished for not learning his lesson the first time.

Unfortunately, such an enlightened approach will not happen anytime soon. The federal government is run by a self-described feminist prime minister who believes that cracking down harder on all cases of domestic violence, no matter how minor, is the proper approach, despite the negative consequences. Bill C-75, the new law making its way through Parliament, will make it harder for repeat offenders to obtain bail, which is understandable. But neither the federal government, which is responsible for criminal law in Canada, nor the provincial governments which administer the law, are proposing to streamline or simplify the way that first-time offenders are dealt with. It’s just more “law-and-order” piled on to the previous government’s “law-and-order” approach. It wins votes, but does nothing to address the real problems, or help the really needy victims. The chronic problems in the justice system continue to remain unaddressed. As pointed out by those who know how the justice system’s problems affect all of ofsociety, when the justice system is crumbling, the public loses confidence in it, and everyone suffers.

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Arun S. Maini, lawyer and founder of The Defence Group, has practised criminal law since 1995. He’s a graduate of the University of Toronto and Dalhousie University Law School. After completing his articles at a Bay St. law firm, Mr. Maini joined the federal Department of Justice as a prosecutor of drug trafficking, tax evasion, and immigration fraud cases in Toronto, Brampton and Vancouver. In 1999, Mr. Maini transferred to the provincial Crown attorney’s office in Brampton, where he prosecuted a wide range of criminal offences, from theft to murder. In 2003, Mr. Maini left the government to establish The Defence Group. Mr. Maini handles all criminal offences and regulatory prosecutions.

Over more than 25 years as a criminal lawyer, Mr. Maini has prosecuted and defended hundreds of criminal cases, and has extensive jury trial experience. Mr. Maini has also lectured at The Advocates’ Society and has taught advocacy at the Law Society and Osgoode Hall Law School’s Intensive Trial Advocacy program. Maini appears occasionally in the media to comment on criminal law – see examples from the CBC, the Toronto Star, and the National Post.

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