Architect of Overkill DV Policies Calls for Change

“[A] well-respected family law expert who helped draft Ontario’s so-called ‘duty to report’ policy 30 years ago now says it needs a review and better use of discretion.” From the Toronto Star’s Domestic abuse law blasted: Authorities ‘overreact’ as warring couples use zero-tolerance rule to gain upper hand, lawyer says (8/28/09):

Ontario’s “zero tolerance” policy on domestic violence has come into question following an unusual court case involving an Orangeville-area woman who was charged with assault after joking in emails that she could solve her marital problems with a gun, if only she could get one. Alison Shaw, 40, was forced out of her home and ordered to stay away from her three children after her estranged husband claimed to have been “frightened” by the online missive, which followed what a judge described as a “one-punch bar fight” over a month earlier in an area Legion hall. The ruling is unusual on two fronts: It’s a twist on what men’s rights groups claim divorcing fathers have been suffering for years at the hands of police and the criminal court system. And it’s creating buzz in legal circles because a well-respected family law expert who helped draft Ontario’s so-called “duty to report” policy 30 years ago now says it needs a review and better use of discretion. “This is a gross overreaction by the Crown and by the police in response to what they thought is the zero-tolerance rule,” says Philip Epstein, a veteran divorce lawyer who sat on the committee that crafted the 1979 directive. “We know so much more about domestic abuse now than we did back then. It’s time to re-examine the policy and create some limited discretion for the police and Crown attorneys to deal with this problem,” he said…
The way such allegations are handled by police and Crown attorneys can have “the disruptive force of a hand grenade” for families, Pugsley said, setting in motion a chain of events that can wreak “havoc” on children. Shaw’s treatment was fairly typical: She had no criminal record, was charged and held in jail overnight until she could post $5,000 bail, and ordered to stay away from her home and kids “without any regard for children’s best interests,” the judge said. Her bail conditions also restricted her from using the Internet. “This is not for one moment to diminish the impact of spousal abuse on family members and children in Canada,” said Pugsley, a point Epstein also stresses. But “the events after the arrest of Ms. Shaw do not, in retrospect, show the police, the Crown, counsel or the criminal judicial system in a good light.” Shaw and her husband, Stephen, were estranged, but still living in the same house, when he hacked into her computer in late 2007 looking for evidence of an affair. Instead, he found what Pugsley described as “vile language” and “gossipy joking” in an email to a girlfriend that talked about “solving her matrimonial problems with a gun, if she could only get one.” The husband reported them to police, as well as an incident over a month earlier in a bar in which she is alleged to have punched him. He returned to ask police to lay a charge of assault after meeting with a lawyer. “I can only hope that no licensed lawyer in this province would have advised the father that the fastest way to get custody and exclusive possession of the family home was to report the mother’s transgressions to the police,” Pugsley said in his ruling. While Epstein says false or trumped-up allegations are rare, and domestic abuse remains a “very, very serious and real issue,” they can unfairly cripple an accused legally and financially because Ontario’s court system is so slow and overburdened. He added the legal aid system is so cash-strapped, it can take eight months to a year for a criminal case to be decided. During much of that time, the parent has no access to their children. (Pugsley moved quickly to give Shaw 50/50 access to her kids on alternating weeks.) Epstein had one case where a wife alleged abuse and then started clearing valuables out of the house while her husband awaited a bail hearing. Some men have started fighting back, says one lawyer whose female client is being threatened with a $250,000 wrongful prosecution suit by her ex-husband.

I’m sure Epstein and the others involved in creating this mess largely meant well–they probably simply didn’t anticipate that women (and sometimes, as this case shows, men) would misuse the machinery they had set up to help battered women.

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