The scales of injustice

The verdict on zero tolerance is in and it isn't good. Designed to protect women from abusive partners, the rigid, 'one-size-fits-all' strategy too often ensnares couples who feel remorse after an argument gets a little out of hand. 'Calling 911 is like pressing the nuclear button. You cannot call the missiles back,' one lawyer told Kirk Makin, who looks at the devastating impact of a policy that wasn't meant to ruin lives and destroy marriages.

The Globe and Mail, By KIRK MAKIN, January 11, 2003,

After bickering all day Saturday, the tension in the house as night fell was unbearable. As Gerald and Elena prepared to put four-year-old Emma to bed, Elena finally snapped.

"She started throwing stuff and attacked me in front of my daughter," recalled Gerald, a 41-year-old computer analyst. "It was a total loss of control. My daughter was crying and I was scared. I panicked and called 911."

Then he barricaded himself in one of the bedrooms of his snug Toronto townhome and began singing lullabies to calm his daughter. The child's crying seemed to enrage Elena more. She grabbed the phone and told an 911 operator that her husband intended to kill her.

Five minutes later, a disbelieving Gerald was being dragged away in handcuffs. Officers at the police station realized that his cut lip and neck abrasions backed up his story. They returned to arrest Elena, a part-time store clerk -- and take a thoroughly frightened Emma to sleep at a neighbour's house.

Gerald spent two days behind bars. His wife spent four. They were released only after agreeing not to contact one another for any reason. The order obliged Gerald and his elderly mother, who lived with them, to move out of the family home immediately. For the next few months, they slept on a relative's living-room floor.

Lawyers for the couple finally persuaded the Crown last month that the assault charges would not succeed. After not seeing one another in months, Gerald and Elena stared across a Toronto courtroom as the charges were formally dropped.

"We were traumatized and thrown in jail," Gerald said. "It basically ruined our lives and destroyed our marriage. I lost all my savings of about $27,000.

"They created all this animosity, pain, agony and humiliation -- and why? Because they think every family is going to kill each other? I must have been the most stupid person in the world to dial that 911 number. I would never dial it again. I would rather that I had died."

Their story shows the devastation that zero tolerance can wreak and why the opposition to it is growing increasingly louder.

A couple of decades ago, there was a widespread perception that domestic abuse was strictly a private matter. That changed dramatically after a series of inquests into slain spouses -- not to mention considerable lobbying by concerned women's groups. Zero tolerance was born.

Although developed as a life line for women unable to stand up to brutish spouses, critics say zero tolerance is tying the hands of police officers at the same time as it patronizes women and destroys their families. They say it blithely reduces the complexity of crime and punishment to a one-size-fits-all philosophy, indiscriminately entangling both serious and small-time offenders in its dragnet.

"This is the area of my practice where I see the greatest potential for injustice," says Robert Rotenberg, the lawyer who represented Mr. MacNeil. "Whatever happened to our notion of people as individuals? There is this underlying generalization that lumps every man in with the most extreme cases. You can't run a justice system through stereotypes."

Across the country, each province developed its own strict guidelines for police and crown attorneys to follow. The rigid measures of zero tolerance usually result in:

Laying assault or threatening charges virtually any time a woman makes an abuse claim, whether or not she agrees to it.

Opposing bail for the accused.

Imposing orders that force defendants out of the family home.

Keeping prosecutions going even after spouses have resolved their differences. No one denies the need to treat domestic abuse seriously; 69 men and 16 women were charged with killing their partners last year alone. But critics of zero tolerance point to a long line of marginal cases that lawyer Melvyn Green lumps into a single category: "Single-instance, minor transgressions by immediately remorseful husbands."

These cases typically start late at night, after an argument rages out of control. "Many, many, many domestic assaults are a very brief encounter at the end of a verbal fight," Mr. Rotenberg says. "The man grabs his wife and says: 'You're not going out!' "

The defendant sits in jail until Monday morning -- and several days longer if the court lists are too clogged. It makes no difference whether the complainant weeps and cajoles the Crown until she is blue in the face: The machinery is in motion.

"Most people don't know that calling 911 is like pressing the nuclear button," Toronto defence lawyer Alan Gold remarks. "You cannot call the missiles back."

Obtaining bail often means forgoing contact with one's wife or children, which many men agree to rather than face months in jail or a costly bail review at the Superior Court level.

"For the first 72 hours, I would say every man who contacts me is in extreme shock and depression," Mr. Rotenberg says. "A lot of them are suicidal. These are normal people who love their children. Their lives have been ripped apart. The criminal justice system is a sledgehammer. When it gets involved in people's lives, it is as if you've dropped a bomb into their marriage. You have marriages ending after 18 years because someone reached out and grabbed an arm."

Lawyer Dan Brodsky says the no-contact orders are often imposed without the complainant even being warned. The defendant is given 20 or 30 minutes to remove his belongings from the home, while a police officer stands guard. They are able to take only a few personal items, lawyers say. The complainant doesn't have to let him in, and any disagreement over property is usually resolved in her favour.

A defendant who has rebuffed offers from the Crown to plea-bargain often gains no comfort months later if he is acquitted.

"He hasn't had contact with his family for eight, 12 or 16 months," Mr. Rotenberg says. "The kids don't know who he is any more. The wife ends up keeping the house and kids. So, you have a man who is not guilty of anything, but loses everything. I've had clients who wanted to plead guilty just because they couldn't take the conditions, the delays."

Mr. Brodsky says that unless a defendant or the complainant pays for a lawyer and privately commission a psychiatric report to show the presiding judge, "it is almost impossible to fight a no-contact order."

Another Toronto lawyer, Tanya Kranjc, has managed to overturn five no-contact orders on behalf of complainants. She says her clients were fortunate enough to have one thing in common: They did not fit the stereotype.

"Most of them are middle-aged, educated, professional women who do not fit what I think is their [the prosecution's] image of a victim," Ms. Kranjc says. "They were not doing this out of fear, but mostly because of their children. They said they had no idea when they called the police that their husband would be charged. They all just wanted the case to go away."

Ms. Kranjc says the women also had the advantage of resources. "The only way to do it is to get a lawyer, fork over a couple of thousand dollars, and hope for the best."

Maria's gaze did not waver as she lit a fuse under the Crown's case one morning recently in a court exclusively set aside for domestic assault cases.

"I didn't really want to bother with the courts," she testified. "If I had a choice, I wouldn't have come. I had a problem with my marriage -- like everyone else. But everything has been blown out of proportion. It has been a nightmare."

Initially a mainstay in her husband Vince's prosecution for uttering death threats to her, Maria had long since switched sides. She now expressed shame and sympathy for a man who had caught his wife with an apparent suitor.

"Sorry to use the expression, but I realized he just wanted to have me in bed," she told Ontario Court Judge Brent Knazan. "It was while my husband was in jail that I came to my senses."

Wearing the resigned air of one who had seen it all before, Crown counsel Erin Winocur noted that a police videotape made hours after the altercation showed Maria expressing fear of her husband. Had she been intimidated into changing her story?

"I swore at him," said Maria. "I called him a bad name. He called me one back. That was all. I was sick at the time and said things I shouldn't have said. He's innocent. I don't think I was ever afraid of my husband."

Lacking other evidence to prove the charge, Ms. Winocur reluctantly withdrew it. Just two people would ever know whether Maria was a recanting victim cowed by a repressive husband or a tough-minded woman unwilling to bow to the uncompromising demands of zero tolerance.

Mr. Brodsky traces the notion that women are too helpless to be believed back to a 1987 Supreme Court of Canada ruling in Regina v. Lavallee that created the so-called battered woman's defence. The defendant in that case, an abused woman, was acquitted of murder on the grounds that she had a right to defend herself against an unspeakably brutal spouse.

"The concept that arose out of it was that most of the time, women can't speak for themselves," says Mr. Brodsky, who helped defend Ms. Lavallee. "Isn't that insulting? We never expected that zero tolerance would be put in place because of Lavallee."

It is still impressed on prosecutors that zero tolerance is a vital tool that saves lives. The Ontario Crown Policy Manual, a bible for Ontario prosecutors, states emphatically that whether or not the complainant agrees, "all such assaults shall be prosecuted with vigour." One women in 10 is physically abused by a partner, the manual states unequivocally, and each is likely to have been previously assaulted as many as 30 or more times in the past.

The statistics are infamous among defence lawyers, many of whom doubt their accuracy and believe they are used to rationalize harsh measures against small-time offenders.

"The figure is now dated," acknowledges Peter Jaffe, director of the London Family Court Clinic and a high-profile advocate for abused women. "But in general, it is true to say that when a case comes to the attention of the police, there tends to be a pattern."

But Edmonton lawyer Brian Beresh believes zero tolerance been seized on by victim advocacy groups who stand to reap financial benefits. "They have tied themselves to police forces. After an arrest, the police immediately take [complainants] to these groups."

Yet, surprisingly, some of those with reservations about zero tolerance are in the victims movement itself.

"Since zero tolerance came into being a few years ago, I really feel we should take another look at it," says Sharon Rosenfeldt, chairwoman of the Ontario government's Office of Victims of Crime. "Every case is different, and every victim responds differently. We're learning more and more about where there are problems. We should do some research."

There is also an unexpected meeting of minds between some feminists, victim advocates and defence lawyers who see zero tolerance as preventing women from expressing their independence.

Eileen Morrow, director of the Ontario Association of Interval and Transition Houses, says it has proved tough to create a system that protects women while at the same time "providing control to women who are caught up in the system against their will.

"Many women will say: 'I wish I had never called the police. I didn't get justice, I just got revictimized,' " Ms. Morrow says. "The criminal justice system needs to respond to women and be sensitive to their concerns about losing control."

She says the real problem is not so much zero tolerance as the lack of social services available to women whose lives are disrupted by a prosecution.

"Governments see this as a victims' rights and crime-control problem," she says. "But it is more than that. It is about who is going to look after your kids? How are you going to eat? The criminal justice system is a very small part of this."

While Dr. Jaffe defends zero tolerance as a necessary response to years of inaction by police, he says that "the solution wasn't to turn the pendulum to the other extreme."

He says the "blunt instrument" of the criminal law is now being overused at the expense of other programs to reduce spousal violence and help victims. Stringent bail conditions and the lack of discretion vested in police and Crowns are causes for concern, he says.

"Judges have become like neurosurgeons operating with a hammer and chisel," Dr. Jaffe says. "I think we have a lot of work to do. The system needs retooling and retraining."

An Ontario prosecutor who has dealt with many domestic abuse cases agrees. She says the bad, old days of not treating domestic abuse seriously "have been replaced by the troubling assumption that if it happened this time, it probably happened before -- 32 times, we are told, to be precise -- and that she is a helpless victim with no free will or insight."

Sadly, the policy may be defeating its aims, says the prosecutor, who stresses that she remains a strong believer in prosecuting "gendered violence."

"A coercive process that, once engaged, cannot be abandoned for any reason, may discourage many complainants from coming forward," she says. "Many of the protocols that have cropped up around zero tolerance are themselves offensive -- for example, videotaping statements of complainants so they can't successfully recant down the road. This is not merely coercive, but it involves ancillary insults."

To criticize zero tolerance is to invite instant attack from its advocates - particularly if the criticisms focus on the way men are treated under the policy. Mr. Rotenberg said he is so fed up that he no longer cares who attacks him for telling the truth.

"There is zero tolerance for men, but there is no zero tolerance for women," Mr. Rotenberg asserts. "Police are reluctant to charge women. In fact, I can't remember a women being charged unless there was a physical injury. Whereas, men are charged all the time without there being a physical injury."

Cases where the custody of children are part of the backdrop can be particularly unfair, Mr. Rotenberg says. An unproved allegation of domestic abuse against a mother is bound to devastate the chances of a father gaining custody or favourable visitation rights, he says.

"That's the secret undercurrent in all this," he says. "When a man faces even the most minor charge, it puts an enormous cloud over his head in all the family proceedings. There are definitely wives who are told by their family lawyers that if you have grounds to charge your spouse, it will be a great advantage to them in the custody battle. There is no doubt this happens a lot."

A Toronto couple who went to Mr. Green for help, however, represented the flip side of the coin. The woman, who holds a senior media job, and her husband, who works in publishing, wanted to stay together.

"Their relationship had been strained for some time," Mr. Green says. "It was never anything physical, but the tension was palpable. It came to a head that Saturday night, when their barbed exchanges -- chiefly about parenting -- led to a single push."

They gave police precisely the same account. "She had wanted to draw a line," Mr. Green says. "He understood, and was ashamed. But to her amazement, police told her they had no choice but to arrest her husband. Despite her protests, they did just that. Because it was a holiday weekend, he was held until Tuesday morning for a bail hearing."

Mr. Green advised the wife to retain her own lawyer. Together, he said, they could lean on the prosecutor to consent to bail. It worked -- but only after the wife agreed to sign a legal paper authorizing her to withdraw her consent at any time.

"She hated this piece of paper," Mr. Green says. "She hated being deputized; being an agent of the state. She came to hate the way the entire process patronized her and treated her as a 'victim.' "

In the end, the husband pleaded guilty to common assault largely to spare his wife having to testify. He got a conditional discharge. "They have done some counselling, and they're still together," Mr. Green says. "But it would take a monstrous act for her to ever call 911 again." Domestic assaults have always been a wearying reality of police life.

"On a given night, we have six or seven [defendants] come through here," says a 23-year veteran of the Toronto Police Service. "Five of them may be domestics. We have to lay charges. The government has made me throw out a net that catches everybody in it.

"Say you piss off your wife one night and she decides to call the cops to say: 'He assaulted me.' If there is any redness on the side of her face, I no longer have any discretion. I shall charge you. You're going to be in jail until Monday and you'll be living in your car after that. Imagine how your life is going to change?"

If he were free to use his discretion, the officer estimates that he would let 20 per cent of the people he charges off with a lecture. They would be the cases where an angry wife has called 911 to jolt her husband, he says, or where the repercussions of a criminal charge clearly outweigh the actual allegations.

"We have women who go back to court and say: 'I want him to come back because I still love him' or -- if they are more honest -- because he is the sole breadwinner," the officer says. "That happens quite a bit. The Crown just sits there and says it's not acceptable."

In a case two years ago, CBC radio reporter Robert Rowbotham was charged with assaulting his girlfriend, Valerie Phillips. His parole on a drug-importing sentence was revoked.

Ms. Phillips quickly recanted, saying she had fabricated the story in a drunken attempt to pay Mr. Rowbotham back for breaking up with her. She even pointed to her criminal record for perjury. Several months later, the Crown conceded that it had nothing to back up her account and a judge acquitted Mr. Rowbotham.

"How they could take my story seriously is beyond me," Ms. Phillips said disgustedly at one point in her quest to end the prosecution.

The Toronto police officer says it is not hard to understand why police were stripped of their discretion in domestic abuse cases, since a single error in judgment can have devastating results.

"The government said: 'Let's take the power away from the cops so they can't make a mistake.' But my bottom line is: Give me the tools to do the job. Don't handcuff me."

Mr. Rotenberg says the problem is that "everybody is covering their posterior. The police officer has to lay a charge. The Crown has to run a bail hearing instead of agreeing to bail. And the JP doesn't want to be the one who has blood on his hands if something goes wrong."

Mr. Gold, the Toronto defence lawyer, calls it "Coroner's Inquest Syndrome" -- a condition he defines as the fear of having to testify at the next coroner's inquest into a slain spouse.

"A thousand people will be kept in custody to prevent the one-in-a-thousand or the one-in-ten-thousand who might commit a serious crime," Mr. Gold says. "It is the very antithesis of justice, which involves the individualized consideration of each case."

However, some police remain true believers. "I've had prosecutors say they didn't want to proceed, but that it came down to the police pushing them," says Mr. Beresh, the Edmonton lawyer.

He says some prosecutors in the Prairie provinces have told him privately that they would have withdrawn or reduced charges if they felt they had the leeway to do so.

"If you step outside the guidelines, you have to justify it in a major way," Mr. Beresh says. "There is an absolute fettering of their discretion as to which cases should be prosecuted and which shouldn't."

There are few cases that can worry a judge as much as a domestic abuse case. The motives of husbands and wives are often hard to decipher, and a wrong word can instantly launch a formal complaint or a public denunciation.

"A judge in domestic assault court said to me recently, 'They want to make me a social worker,' " Mr. Beresh says. The judge added that many of the cases she sees don't belong in the criminal courts.

It is not a sentiment any judge is likely to state publicly. From the lobbying of groups like the Toronto Woman Abuse Council to the vitriol of columnists like The Toronto Star's Michele Landsberg, the domestic abuse victims network has a powerful presence that silences most critics.

A tactic known as "court-watching" arrived in Canada recently to add to the pressure on judges. Based on a U.S. model, Women's Court Watch is funded largely by the Ontario government's Trillium Foundation. Its administrators are paid, but those who sit in courtrooms to note how cases progress and what judges say are volunteers -- usually abused women or students.

Women's Court Watch co-ordinator Anya Kater notes that the presence of court-watchers is equally useful in reminding prosecutors that they must not shrink from taking a hard line.

"There is a kind of creative tension between us and Crowns, because there is a perception that we're judging them," she says. "It's good to keep them on their toes too."

The statistics the group compiles may be wildly unscientific, but that didn't stop a sprinkling of reporters from lapping it all up at a recent press conference to publicize 179 cases the group had observed.

Among the information Ms. Kater's group provided was a rating of judicial comments made during trials which the group rated as "positive," "negative" or "neutral." Other observations included judges who improved their scores by offering Kleenex to emotional complainants or making sympathetic eye contact in order "to send them a message that they are welcome in the courtroom."

Vivian Green, director of the council, told the press conference that judges consistently downgrade the value of prosecutions where a complainant has recanted or doesn't wish to testify. "Judicial independence cannot be an excuse for lack of accountability towards abused women," she said.

Ms. Kater criticizes judges for administering too many "slaps on the wrist." In addition, she says, abused women and their advocates are not paid enough heed in the courtroom.

Still, Ms. Kater found some rays of hope. "In half the abuse cases, offenders were held in custody until their trial," she says. "That is very positive, and we would like to see more of that."

But critics of zero tolerance maintain that those caught up in many first-time domestic offences would often be better off diverted into marital counselling, anger management or substance abuse programs.

"I see money being spent on legal fees that should be spent elsewhere," Mr. Gold says. "After tens of thousands of dollars in legal fees, a charge gets dropped. As lawyers, it is certainly not in our financial interest to see changes dropped -- but we would rather take smaller fees and see it dealt with intelligently."

Ms. Morrow, the director of the Ontario Association of Interval and Transition Houses, says it is dispiriting to watch governments throw money into domestic abuse prosecutions while they starve transition houses and programs that provide welfare, social housing or other social services to women who are suddenly rearing children on their own.

"Things are often put in place by a system that just wants to get people off its back," she says. "If they are put in place by people who don't actually understand what people want, it can actually cause more trouble.

In reality, the number of domestic abuse cases that end in a conviction is not very high, Ms. Morrow said. Even if it were, she said, "let's face it -- he is not going to jail forever. That is not the solution, anyway. Many women feel the process doesn't really change his behaviour or keep them safe."

Kirk Makin writes on legal affairs for The Globe and Mail.

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