Ottawa Citizen
Thursday, January 09, 2003

We don't need yet another court freed from the rules of fair trials

Dave Brown
The Ottawa Citizen

Here comes another specialty court. This time, the state thinks it can scare straight the defective hammerheads who use guns to perpetrate violence by removing their court protections and charter rights.

Ontario Attorney General David Young went on record this week as favouring special courts that would deal with nothing but gun cases. Those courts would use special prosecutors who would settle for nothing less than maximum sentences for gun offences, and the minimum sentence would be raised to 10 years.

Such courts would also circumvent the Criminal Code of Canada, which is no longer a problem. Presumption of innocence and rules of evidence -- fair trials, in other words -- are stumbling blocks not found in specialty courts.

Family courts are an example. In a child-protection case they accept hearsay evidence, rumours, and make decisions based heavily on psychological reports. Those reports agree with the position of the side that paid for them 100 per cent of the time.

Domestic violence (DV) courts were established in 1997. They get around the guarantee in the Canadian Charter of Rights and Freedoms that says one can't be arrested without an investigation that shows some justification for arrest. Police routinely arrest based on a phone call and let the domestic court take it from there.

Police take the view they are following orders and although they refuse to be publicly identified, some have told me the best advice in a domestic dispute is this: First one to dial 911 wins.

It's an indication of DV courts' attitude that it is now routinely referred to in the Elgin Street Courthouse as "abuser court." In an average month 120 accused, mainly men, are swept into that process. Their first challenge is an automatic restraining order preventing them from going home. Even if the partner says it was a fight with no injuries and it's over and she wants to recant -- she can't.

However, the man can get around the restraining order by agreeing to plead guilty.

Since few husbands/fathers can afford to live outside the home, this is a glitch that guarantees a high conviction rate. As the Toronto Star regularly reports, and did again when reporting the gun court story, DV courts get a high approval rating from women's advocacy groups. The situation is the reverse among men's advocacy groups, but that doesn't seem to matter -- except in British Columbia.

Last summer B.C. Attorney General Geoff Plant went on record as saying DV courts, established there following Ontario's lead, needed a second look. They were running with such low conviction rates they were doing more harm than good.

A survey of spousal-assault cases showed nearly half the charges approved by the Crown under the zero-tolerance policy were stayed. In cases that went to trial, only 48 per cent ended in a conviction.

Key words there are "went to trial." Few do. Most men opt for the guilty plea so they can go home. With that they agree to take 16 sessions of anger management courses. In Ontario, women's advocacy groups are demanding weekly anger management sessions for a full 52 weeks. DV courts are having great success in transferring wealth from families to lawyers and psychologists.

According to the Vancouver Sun, Mr. Plant was "pilloried for his policies" by women's groups that picketed the legislature and law meetings where he sought input.

At the same time, advocacy groups supporting men, under the banner "more justice, less lawyering," were demanding change.

Mr. Plant was saying to all concerned: "If you've got a better idea, please let me know."

Men's groups in B.C. claim that 85 per cent of abuse accusations arise when a couple is breaking up, and the result is 10,000 spouses, almost always men, being hauled into the DV court process. They claimed a noticeable increase in accusations could be tied to cutbacks in legal aid. The plan may not fund a lawyer in a divorce, but include an allegation of abuse and one is quickly lawyered up at no cost.

Legislators have become prone to bending under pressure from vocal minorities. Almost always the battle cry is "zero tolerance." That means zero explanations accepted. Zero thinking. Zero sense.

Dave Brown is the Citizen's senior editor. Send e-mail to dbrown@thecitizen.southam.ca Read previous columns at www.ottawacitizen.com

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