The Federal Government tabled Bill C-75 last week, and almost instantly (or as quickly as defence lawyers could read 300+ pages of an omnibus bill covering numerous aspects of criminal justice) the backlash began.
Immediately, concern was expressed over the Bill’s amendments purporting to eliminate preliminary inquiries except in the most serious cases, abolish peremptory challenges in jury selection, and reverse the onus in bail hearings in certain circumstances. And these are all valid things to be concerned about. However, there are other significant concerns with this piece of legislation that are being overlooked in the public discussion.
One of the main purposes of Bill C-75 is supposed to be to reduce and effectively address intimate partner violence. Most people know this as domestic violence or spousal abuse.
The Bill attempts to do this in a few major ways. First, it reverses the onus in bail proceedings so that people who have a prior conviction for a domestic violence incident will have to prove why they should be released. Second, it increases the penalties for intimate partner violence and adds a provision that allows a judge to impose a sentence higher than the maximum penalty in cases of a subsequent conviction for intimate partner violence. Finally, it creates a legal definition of an intimate partner.
In addition to these three major changes, there is also the addition of a specific offence of strangulation. This, however, is not limited to intimate partner violence. However, in my experience it is commonly alleged in domestic assault cases.
However, these changes are likely to have the opposite of the intended effect. In knowing one’s intimate partner is more likely to face more difficulty obtaining pre-trial release and be subject to a harsher sentence upon conviction, reporting rates will go down, particularly in marginalized communities like Indigenous communities and people in poverty.
This is borne out in the experience of African-American women in the United States. The United States National Resource Centre on Domestic Violence Women of Colour Network reports that women of colour are more likely to be victims of domestic violence, but less likely to report it. And the barriers to reporting are well-documented in the literature. They primarily include two factors: distrust of law enforcement and the justice system, and poverty. (http://time.com/3313343/ray-rice-black-women-domestic-violence/)
Put them together and you have a catalyst for non-reporting, particularly where the sentences are increased and where bail is more difficult to attain. People in poverty or who are racialized will be less likely to report domestic violence incidents out of fear that they will lose their income-earning partner, or stay-at-home support and that the impact will disproportionately affect them because of their marginalized status. Put simply, if the income-earning parent isn’t out working it’s hard to feed the kids.
And the reality is that they are right: despite the fact that we have sentencing guidelines in place for Indigenous Canadians, this subset of the population is disproportionately overrepresented in the justice system. Increasing sentences to beyond a maximum will not stem the tide in this regard. It will only lead to more Indigenous and impoverished people filing our jails, rather than obtaining the resources they need.
People should not have to be more afraid of the consequences to their families of reporting intimate partner violence than they are of the violence itself. However, if the proposed amendments in Bill C-75 pass, this will be the result. The consequences of the legislative amendments far outweigh any good done in attempting to deter or denounce domestic violence.