Spousal abuse case - Don't shoot flies with a shotgun

Don’t shoot flies with shotguns( A paper on spousal abuse )
By Dahn Batchelor
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From 1983 to 1986, federal and provincial Attorneys General and Solicitors General in Canada adopted policy directives that required police and Crown prosecutors to charge and prosecute all incidents of spousal abuse where there were reasonable and probable grounds to believe that an offence had been committed. These measures included the establishment of dedicated domestic violence courts. This is a big step forward from the days when the police were instructed to ignore the plight of wives who were beaten by their husbands unless the police actually saw the assault or the wife’s injuries were so serious, they required stitches.

In 1983, the Federal Provincial Task Force on Justice for Victims of Crime recommended the development of written guidelines directing that wife assault be treated as a criminal offence and the decision to charge or prosecute this offence should be made independently of the victim’ s wishes.

For the most part, these policy directives and written guidelines are appropriate because spousal abuse is an ongoing evil that must be eradicated if couples and their families are to have a decent and happy life together.

But you don’t shoot flies with shotguns as a means of getting as many people as you can with one pull of the trigger. Unfortunately, these policy directives and written guidelines have resulted in the police and the prosecutors firing in all directions and in some instances, hitting the wrong people. The end results can have terrible consequences on families undergoing these processes.

To prove this point, this writer refers you to the case of Regina v. N.N of Brampton, Ontario who was arrested, charged and tried with the crime of assault, to wit; assaulting his wife in April 2003.

To appreciate the significance of this issue this writer is attempting to point out that the reader has to know what occurred on that particular night. The particulars became known to this writer after he interviewed the parties and attended the trial of N.N as his court advocate.

N.N and his wife ( they have been married for twenty-two years and have two children ) got into a loud and angry argument about whether or not their daughter could go to a dance out of town with her friends. N.N finally went into the bathroom to avoid any further confrontation with his wife.

His wife attempted to push the bathroom door open so that she could continue with the argument and he attempted to keep it closed and in doing so, his hand slipped off the edge of the door and struck her face, which according to her statement to the police at the time of her husband’s arrest, seemed to her like it was a slap. Later in court, she testified that she realized that it wasn’t a slap and that when his hand slipped off the edge of the door and struck her, it was merely an accident.

In any case, she went to the phone and dialed 911. Before the police answered the phone, she hung up. She testified that while she was waiting for the police to come onto the line, she wondered why she was calling 911 in the first place. But as everyone knows, the police will immediately call back and for good reason. The victim may have been forced to hang up the phone.

The 911 operator told the wife that the police were on their way. She then asked if everything was OK. The wife said that everything was OK and that she didn’t need any assistance. The 911 operator continued to ask questions and finally the wife said that her husband had slapped her on the face but that she wasn’t hurt.

This, in this writer’s opinion is the correct procedure. The 911 operator can assume that when someone calls 911 in the first place, it is quite conceivable that there is a problem and the caller saying that everything is OK without investigating to make sure that everything is OK, could have consequences that can result in a loss of life or serious injuries.

The police arrived and N.N’s wife told them that everything was OK. She said that she and her husband had been arguing and that he slapped her once in the face. That’s was all that the police needed to make the arrest. Despite the pleas of the wife, the police handcuffed her husband and put him in the police cruiser after patting him down for weapons.

On the way to the police station, he complained that the cuffs were too tight around his wrists and asked that they be loosened. His plight was ignored. To this day, he has scars on his wrists from the cuffs being too tight.

When he arrived in the police station, he was ordered to strip naked while a nearby video camera was filming the search. The close circuit television receiver was behind the front desk where anyone, including female police officers could see N.N slowly rotating while naked. N.N is a Moslem and being stripped naked in front of anyone other than his wife is an insult to his way of life as it is to all Moslems.

He was then taken to a common cell, which was quite cold, and since he didn’t wear any warm clothes and didn’t have his shoes on, he laid on the cold floor. When he asked if he could have a blanket to lie on, he was reminded by a police officer that he wasn’t in a hotel.

Three times he made a request to make a phone call so he could retain a lawyer and three times his request was refused. At no time did anyone in the police station offer to connect him to duty counselwhich is required by law in Canada. Later at his trial, the court observed that his charter rights with respect to his right to contact his lawyer had been violated but since he hadn’t said anything to the police that could incriminate him, therefore his application for a stay of proceedings was denied.

The next morning, he was brought before a justice of the peace and the condition of his bail was that he was to have no contact with his wife until after his trial.

Shortly thereafter, his wife had written a letter to the judge which invariable ended up in the hands of the Crown’s office in which she stated that her husband was not a violent man and that she didn’t want the police to come in the first place and that she wanted her husband to be returned home to her and their family. She added that she only called 911 because during their verbal confrontation, she thought the matter might get out of hand.

Later when N.N’s court advocate attempted to get the Crown to consider a peace bond, there was a negative response from the Crown because N.N was not willing to admit that he purposely struck his wife in the face.

The trial was scheduled for December 22nd 2003 but the morning and early afternoon was spent dealing with N.N’s Application for a stay of proceedings. Then the assistant crown attorney asked for an adjournment before the afternoon really got underway.

A request was made by N.N’s court advocate that his client be permitted to return to his family for Christmas. His request was denied after the Crown argued against the request.

The matter was adjourned to January 20th 2004 but because the crown had neglected to bring N.N’s wife back into the courtroom on December 22nd to bind her over to January 20th, she didn’t appear and the matter was adjourned again to February 4th 2004.

When N.N’s wife was called to the stand, before the Assistant crown began to examine her, she said that she wanted to make a statement to the court. The judge permitted this.

She complained that this matter had gone on far too long. She said she never wanted the police to come in the first place. She pointed out that for almost ten months, she and her husband had been separated from one another and couldn’t even communicate with each other on the phone. She said that it was hurting her family that her husband couldn’t return home.

It was when she finished with her statement that the judge asked the assistant crown as to why the crown couldn’t considered a peace bond as an alternative to proceeding any further in the trial. The response was that if a peace bond is to be considered, it should be after her testimony was heard. The judge agreed.

During her testimony, N.N’s wife said that she was satisfied in her own mind that she wasn’t slapped by her husband and that his hand struck her in her face purely by accident when it slipped off the edge of the door. The crown suggested that she was making that up and that her original complaint was the truth---that her husband had really slapped her in the face. He asked the court to consider her as a hostile witness and the judge conceded to his request.This means that the assistant crown can ask leading questions of the witness, something he normally couldn't do when questioning his own witness.

It was at this point that the judge made an interesting observation. He said that it was most unfortunate that wives under circumstances such as in this case should find themselves being compelled to falsely testify under oath in order to protect their families from enduring more hardship caused by their husbands being separated from their homes.

The assistant crown spent the better part of an hour trying to get the wife to recant her statement that the slap was an accident and that her original written statement to the police that her husband really slapped her in the face was the truth but she kept maintaining that she was at fault and that the slap was an accident. She said that it was she who had instigated the problem in the first place, that her husband went into the bathroom so that the arguing would stop and that it was she who tried to force the bathroom door open so that she could continue arguing with him and as a result, his hand slipped off the door and struck her in the face and that it was nothing more than an accident. Incidentally, the police wrote in their notebooks that there was no visible mark on her face when they arrived on the scene.

No questions were asked by the defence and the accused was not put on the stand. The judge asked the crown to begin its argument.

As it became apparent to anyone in the courtroom following this case that the crown’s case was weak to begin with and the fact that the crown even suggested that when the accused tried to push the bathroom door closed, that that too constituted as assault, the weakness of his case was even more apparent.

The hopelessness of the crown’s case then became obvious when it was then the turn of the defence to address the court and the judge told him it wasn’t necessary.

The judge said that he didn’t believe everything that N.N’s wife had said but that he added that he wasn’t totally convinced that her husband deliberately slapped his wife and he further added that when N.N was pushing the door against his wife’s body to keep her out of the bathroom, that didn’t constitute an assault at all. The charge was dismissed.

As a cruel irony, the defence had repeatedly asked the Crown to consider a peace bond as a means of resolving this matter and was repeatedly rebuffed, month after month by the crown, but after N.N was acquitted, the crown then asked the judge to order a peace bond. The judge asked N.N’s wife if she wanted a peace bond against her husband, She told the judge that it wasn’t necessary. The judge then refused the crown’s request.

Now one is forced to ask this rhetorical question. “What benefits did society gain from all of this?” The answer is obvious. Nothing. As a result of this terrible incident in the lives of this family, the family was almost destroyed. They underwent financial hardship because the husband had to pay over four thousand dollars for his defence and he had to pay additional money for living quarters for himself over and beyond what he had to pay in mortgage payments towards his family’s home. Further, he and his wife suffered loneliness and anxiety as a result of their almost ten months of separation.

Should there have been a better way to deal with this so-called case of spousal assault? Absolutely. But how?

To begin with, we have to accept the reality that all families experience some form of conflict. For the most part, it is verbal but unfortunately, in many thousands of instances, it can become violent.

But there are degrees of violence and even then, there is some doubt that violence at the extreme lower end of the spectrum is really assaultive in nature. For example, if both a man and his wife get into a minor shoving match, is that to be construed as an assault, especially when neither partner is hurt in any manner whatsoever? Can exerting any form of pressure against another human being’s body be construed as an assault” Technically yes but should such a person being charged with assault? If a man points his finger in the direction of his wife’s face, is that to be construed as an assault? Technically yes but should he be charged with assaulting his wife? Hardly.

There is a Latin legal term which best describes this kind of physical activity. It is, ‘de minimis non curat lex’. Simply put, it means, ‘The law does not bother itself about trifles.’ But in N.N’s case, the law bothered itself for ten long months. It interjected itself into this family’s existence and in the process, almost destroyed it. There is an adage that says that absence makes the heart grow fonder but there is another truism that says that absence makes the heart forget. If it wasn’t for the love that both N.N and his wife had for each other, this separation could have resulted in a divorce.

Admittedly, there are times when society has an interest in the goings on of families and in N.N’s case, this may apply. Obviously, what occurred on that night in April 2003 between N.N and his wife shouldn’t have happened.Both children were crying during the confrontation between their parents and this isn’t conducive to raising children in a happy environment.

It is this writer’s belief that an alternate way to resolve this problem would be first, after the police had been called, they would take a very close look at the situation before deciding to arrest the husband. If they were satisfied that the wife was in no danger and that she didn’t want her husband arrested or charged, they would back off and follow it up with a female community officer who would interview the wife separately to satisfy herself that everything really is OK.

Second, if the police have reason to believe that if the husband remains in the home at that time, the problem may continue after they have left, then they should arrest him and as a condition of his release on his own recognizance, he should find a temporary place to live until a resolution can be brought about as soon as possible. A temporary restraining order can be in place so that there is no contact between the spouses.

Having the husband undergo an interview with a psychologist experienced in spousal abuse cases and the wife being interviewed by a victim services person also experienced in spousal abuse cases who can ascertain in the mind of the interviewer whether or not, the wife isn’t in a state of denial, can bring about a satisfactory resolution for both the husband and the wife.

If, as a result of the interviews, the professionals determine that neither spouse is at risk, then the matter can be stayed by the crown and a peace bond can be ordered if that is the wish of the complaining spouse.

Tarek Haddad, a probation officer in the Brampton courthouse included in his paper on ‘Family Mediation in the Presence of Spousal Violence’ that there are some who will argue that mediation involving spousal assault is inappropriate because the process would serve to legitimize violence rather than sanction the perpetrator and that mediation isn’t enough to ensure the safety of the abused spouse.
In this writer’s opinion, there is some truth in such a view however, it would hardly apply in cases were the assault is of such a minor nature that no injuries are sustained and it is a one-time incident as it was in N.N’s case.

He does point out that proponents of therapeutic family mediation insist that all parties have legal representation while engaged in the mediation process. This ensures that both parties receive a fair and just settlement of their problem that led to the confrontation in the first place.

Erickson and McKnight in their book, ‘Mediating Spousal Divorces’ (1990) said in part;

“We believe that mediation sessions with both spouses present can reduce the likelihood of future abuse. We believe that because a mediation process encourages cooperative interaction, it should be used as an additional method of treatment modality to end spousal abuse after divorces.” unquote.

It is this writer’s opinion that mediation sessions with both spouses present can be used as a form of an alternative dispute resolution. This will free the courts from the time-consuming process of trying cases that shouldn’t be in the criminal courts to begin with and thusly freeing up the courts so that other criminal cases aren’t held up as long as they are.

Most importantly, it will make it possible for spouses to reunite again as soon as possible so that the family can begin living a normal life together.

To keep a husband away from his family for ten or more months when all the time he is innocent of any criminal wrongdoing is a mockery of justice. To call that form of interference in the lives of families as being justice, then justice had better apply for a name change.

NOTE: This writer was the court advocate for the accused husband.