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July 17, 2001

Lack of restraint

National Post

A woman who allegedly held her 18-month-old daughter out the rear window of an SUV traveling 100 km/h on a Toronto highway last weekend was apparently breaking the law even before she rolled down her window. The woman is bound by a restraining order that requires her to stay 200 metres from the allegedly dangled child and from her husband, who was driving. But the order wasn't worth the paper it was written on. Both Ms. Thi Phuong Dang, who was charged with assaulting her husband and uttering threats two weeks ago, and her spouse chose to ignore it.

According to police, when Ms. Dang appeared at her husband's residence on Saturday, he did not insist she leave. Nor, apparently, did he notify police. Rather, he took her shopping. "He was ... trying to do her a favour," a police officer told the media. "He knew she had no family in the city. He was trying to be a nice guy."

However benign his intentions, the decision was a costly one. Fearing the child would be dropped, motorists who witnessed Saturday's alleged crime swerved out of the way -- resulting in a two-vehicle collision. Ms. Dang now faces further charges, including failure to provide the necessities of life to a child and creating the common nuisance that sparked the accident.

When domestic tragedy strikes, we frequently learn it occurred despite the best efforts of the legal system. The allegations against Ms. Dang form part of a familiar pattern: Judges and lawyers do exactly what they are supposed to do, and a restraining order is issued to protect a party believed at risk of domestic violence. But, after tempers cool, the victim and the assailant conspire to defeat the order. Walter Fox, a Toronto criminal lawyer, calls this pattern "the dirty little secret everybody knows." "Let's say there's a problem in the house Thursday night," he explains. "She calls the police, he gets arrested. Friday morning he's released on bail and can't go near his wife and kids. Well the in-laws are coming for the weekend, there's a mortgage payment due, she needs money for this or that. So she calls him. Everybody knows when they put him on the order that this is what's going to happen. The Crown knows, the judge knows, the cops know, the guy who sweeps up in the court knows."

In the past, an individual who violated a court's protective order was typically prosecuted even if he or she was the party whom the order was designed to protect. But that is not common practice anymore, apparently because no one wants to be accused of "re-victimizing" the victim. As last weekend's events amply demonstrate, this is flawed charity. Unless both parties face stiff penalties for breaching restraining orders, their issuance is a waste of the courts' time.

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