Aug 28, 2009 04:30 AM
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.
Criticism of Shaw's treatment first arose more than a year ago in a family law decision from Ontario Court Justice Bruce Pugsley, who said it's "commonplace" for the criminal justice system to be manipulated by estranged spouses claiming abuse, "no matter how remote the assault may be in time or, indeed, how trivial the contact."
Epstein has highlighted the decision – and his concerns – in the recently released Reports of Family Law, a critique of interesting or unusual family law judgments. He and other lawyers have praised Pugsley as being the first judge to so clearly tackle the thorny issue of how some warring couples use the criminal courts to get custody of their children and gain the upper hand in divorce cases.
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.
Domestic violence experts such as University of Western Ontario professor Peter Jaffe says the research is clear on what constitutes domestic abuse, but more training of police and Crown attorneys is needed. In fact, they point to what they consider a far more worrisome trend: Police who are simply throwing up their hands, charging both partners, and leaving it up to judges to sort it all out.
"The number-one problem in 2009 isn't minor allegations that are blown out of proportion or the potential for false allegations. The number-one problem in Ontario in 2009 is that there are still 30 to 35 domestic homicides a year and that so many people are being abused and not seeking help," says Jaffe.
This is a follow-up article.
Aug 29, 2009 04:30 AM
Alison Shaw still wakes up some nights convinced she's back in an Orangeville holding cell, her fingertips covered in black ink.
"To this day, I don't understand why I was put in handcuffs and put in jail overnight," says Shaw, 42.
The Shelburne mother of three isn't all that different from many women. As her nine-year relationship with her husband Steve unravelled around her last year, Shaw took to "venting" to girlfriends via email, joking with one that she wished she had a gun to put herself out of her misery.
"I even put LOL at the end," Shaw said in an interview yesterday.
But Shelburne police weren't laughing. Nor was her estranged husband, who took it as a personal threat.
Unbeknownst to Shaw, he had been monitoring her emails for months. Shortly after she threatened to leave him back in March 2008, and take their children with her, he took the emails to Shelburne police – along with a complaint his wife had punched him in the face a month earlier at a Legion dance.
Shaw acknowledged she has a lot of regrets, especially over hitting her ex-husband when "nine years of frustration and anger just got the better of me."
Her ex couldn't be reached for comment, but Shaw was ordered into an anger-management program by the court, which, she says, "has been really helpful." Ironically, she claims, the counsellor said she needs to speak her own mind and stand up for herself more.
After her husband saw the reference to a gun in her email, Shaw faced the same wrath that divorcing dads say they've been subjected to for years at the hands of police and Ontario's criminal justice system: Police arrived at her door, slapped her in handcuffs, charged her with assault and held her in jail overnight until her mother arrived to post $5,000 bail.
While Shaw would just like to put the whole ugly incident behind her, it's ignited concerns around Ontario's "zero tolerance" domestic abuse policy.
Over a year ago Ontario Court Justice Bruce Pugsley criticized Shaw's treatment in a family law decision and expressed frustration at how it's "too commonplace" for the criminal courts to be misused by one spouse – usually it's the wife, but in this case it was the husband – to gain custody of the kids, possession of the house and an advantage in divorce proceedings.
This week well-respected family law lawyer Phil Epstein, who sat on the committee that drafted Ontario's so-called "duty to report" directive to police and Crown attorneys back in 1979, said it's time to re-examine the domestic abuse policy and create some "limited discretion."
What happened to Shaw is almost textbook: She was questioned at the police station, searched for a gun, charged and held overnight. She was released on bail, on condition she stay away from her house and her computer. In effect, her ex was given custody of the kids.
It was days until she saw them, for just half an hour, she says, and 10 months until she could step into her own home. Her mother was allowed to go in, with a list of Shaw's personal items and clothes that she stuffed into garbage bags.
The bosses at the office where Shaw works were "very understanding" when she returned from her arrest unable to focus. They let her take two months off.
"I spent that time seeing lawyers, going to court and doing the things I had to do to get back on track."
Over a year later, Shaw is in a healthy, happy relationship, she says. Her kids are with her every second week.
While he wouldn't comment on Shaw's case, Shelburne police chief Kent Moore acknowledged that domestic abuse cases are among the most difficult for police. But "zero tolerance" is a bit of a misnomer, he added. It implies that police lay charges every time they are called, when, in fact, they investigate each case, looking for a reasonable level of proof that abuse occurred.
Every suspect has to be handcuffed while in a cruiser, for the safety of officers, he stressed.
Shaw no longer has a computer.
"My girlfriend has moved to Hamilton now. We talk from time to time, but not by email. I don't talk to anybody on the computer anymore. I'm kind of afraid to."