4/3/02 

Judge takes a stand against flawed domestic violence system

Dave Brown 

The Ottawa Citizen

Saturday, March 02, 2002

A judge made a tough personal decision recently and stepped away from a domestic violence case, saying the definition of violence is too wide and "the world is upside down."

Judge Jean-François Gosselin of the Quebec Court said he didn't want to say "words that would haunt me" so he cut short his statement. With a reputation as fair and outspoken, the Gatineau judge said the Crown had a tendency to lay charges in family violence cases when there was often no need to do so.

By voicing those views, the judge said he felt "no longer at ease" and stepping down, or recusing, was the proper thing to do.

Although he didn't use the words zero tolerance, that's at the heart of the issue that is giving Judge Gosselin problems. The violence against women movement has grown to exert so much power within the legal industry that it has demanded, and won, a zero-tolerance policy.

What it boils down to is that violence against a woman is anything she says it is. If she calls police and claims she was frightened by her partner's behaviour, she kickstarts a system that's all gears and no brakes. It starts with jail for the accused, a restraining order, and a slow and expensive tour of the court system.

If the call to police was made in anger because the caller wanted to win a quarrel, recanting is a difficult option. Domestic violence (DV) specialists say once a call is made only they know what's best. Women recant because they feel threatened, and only a thorough legal thrashing of the man will solve the problems.

One of the DV camp's latest campaigns is for funding for video cameras for on-the-spot recording of complainants. Supporters claim such filming would make it impossible for most complainants to recant. The opposing view is that nobody should be required to give evidence while under the influence of rage or alcohol.

Opposition to the forces that drive the DV campaign is disorganized and weak. There's no funding for opponents.

In 1992, the federal government put up $10 million for a national "study" that resulted in a document many claim is groundless and flawed. Its supporters claim 29 per cent of women in relationships are in need of rescue from their violent partners. Such claims aren't supported by hospital records and come mainly from women's shelters, which aren't open to overview or fact checking.

Many non-believers have been looking for a flaw in the DV campaign, or a safety valve that can protect families from overzealous police and Crown attorneys. Judge Gosselin may have shown the way.

In the case in front of him, the man was charged after police were called by his daughters. Preliminary evidence showed the man told his girls to clean up a mess they made in the home and, when they refused, he displayed anger. He has an acknowledged drinking problem and said medication he was taking exacerbated his anger. He shouted threats. His wife's reaction to the affair was that her husband wasn't thinking straight.

Judge Gosselin pointed out that if both parents had shown anger, there would have been no case in front of him. He said as he understood the situation in the home at the time, he, too, would have been angry and insisted the girls clean up their mess. "This is not criminal."

The family's public airing of a stormy day at home stopped when Judge Gosselin stepped down. Jean Pierre Proulx, chief Crown attorney for Gatineau district, said no further action would be taken and, in future, Crown prosecutors would be expected to exercise greater discretion. He added that Judge Gosselin's decision was wise.

Domestic violence courts, like family courts, don't offer the same protections to the accused as do criminal courts. They are designed to get around the protections of the Criminal Code. The burden of proof is reduced or removed and there's no presumption of innocence. They are political in nature.

When DV specialists step into domestic disturbances, a restraining order is automatic. The man, and rarely a woman, can't go home or have contact to resolve issues until the order is removed, and that can take months. If the woman who made the call is willing to take him back, the accused can go home immediately by pleading guilty.

Ottawa's DV court processes an average 120 families a month. Such courts diminish respect for all judges on all benches. Judge Gosselin may have started a turnaround.