Lawyers Weekly

February 19, 1999

"Assault Prosecutors Fear Interest Groups"

By Brad Daisley
Campbell River, British Columbia

A provincial court judge has accused Crown counsel and special interest groups of creating a "double standard" that sees men but not women prosecuted in spousal assault cases.

Judge Brian Saunderson said special interest organizations such as victims' groups, women's groups and ethnic organizations have put so much pressure on Crown counsel that they now lay charges against the man in all spousal assault cases.

"There is the concern that displeasing an interest group may have adverse consequences," he said, adding prosecutors "do not represent groups or individuals."

"They represent the state and must act in the best interests of the state. Sometimes those interests do not coincide with the interests of pressure groups.

The court found Darryl Arsenault of Tahsis, B.C., not guilty of assaulting his common-law wife Susan Himmer.

Judge Saunderson urged Crown counsel "at all levels" to exercise their "independent judgment" before proceeding with spousal assault cases.

"It is a matter of separating the wheat from the chaff," he said. "The importance of the independent exercise of judgment cannot be overstated and ought to be reinforced by the most senior members of the Crown counsel office in B.C.

"There are far too many prosecutors declining to make the hard decisions, lest they offend some interest group or incur the displeasure of their superiors who themselves are subjected to pressure from the same groups.

"The result can be to work hardship in individual cases.

"While acknowledging the pervasiveness of assaults by men on women, there are cases which, due to their circumstances, do not amount to assaults and should not be brought to court."

The judge ruled Arsenault was defending himself when he slapped Himmer after she verbally abused and assaulted him.

Himmer testified she was drunk and in an "out of control" rampage after Arsenault's ex-wife insulted her.

Judge Saunderson found Himmer slapped Arsenault, yelled obscenities at him, threw a glass bowl at his head and smashed a five-tier shelving unit and some glass lampshades.

He ruled Arsenault slapped Himmer and wrestled her to the ground in an attempt to calm her and prevent her from driving.

There was no history of violence and Himmer was "embarrassed" by the incident, Judge Saunderson added.

He criticized the Crown for not charging Himmer for her assaults, saying it created a double standard.

"The mere fact of this prosecution sends a very clear message: a woman in a relationship with a man can provoke him, degrade him, strike him and throw objects at him with impunity, but if he offers the least physical response, he will be charged with assault."

Arsenault's lawyer Douglas Schofield, of Campbell River, said Himmer tried to persuade Crown counsel to drop the charges.

He said the judge was concerned that Crown counsel policies on spousal assault are "so black letter."

Schofield, who was a prosecutor in Canada and Bermuda for 17 years, said defense counsel can usually talk the Crown out of proceeding if there is a valid defense, but not in spousal assault cases.

"The judge's perception is that there is too much pressure on the Crown these days to proceed with these things."

Regional Crown counsel Bob Gillen, however, sees it differently Gillen oversees all criminal trials on northern Vancouver Island and was not counsel for the Arsenault trial.

He said that prosecutors cannot file charges in a case until they are certain there is a substantial likelihood of conviction and that the prosecution is in the public interest.

"In spousal assault matters.. .it's generally viewed as being in the public interest to prosecute if there is a substantial likelihood of conviction."

Gillen said Crown counsel's spousal assault policy is guided by a general policy to stop violence against women and children.

He also said the decision to prosecute a spousal assault case is made by the Crown and never by the complainant.

This prevents the accused from blaming the victim for the prosecution. It also prevents the accused from exerting undue influence on the victim to drop the charges.

Gillen said the original police report to Crown counsel in the Arsenault case described a much more serious assault, and made no mention of Himmer's actions other than the thrown bowl.

Relying on the report, the Crown decided to lay charges against Arsenault, Gillen said.

He added that the evidence that came out at trial was quite different from what was in the police report.

"I do take exception to [the judge's] comments which suggest that the Crown simply are reacting to pressure groups and are not acting independently. That's simply not the case," Gillen said.

"I also take exception to the comment that there are far too many prosecutors declining to make hard decisions..."

"To suggest that Crown are afraid of making tough decisions [is wrong]. We make them every day."

*Reasons in R. v. Arsenault, 1833-O1J1, 15 pp., are available from FULL TEXT.