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Ontario Bill 117

Presentations by Ms Cynthia Wasser and Mr. Walter Fox — Lawyers


 

From the Hansard

Standing committee on Justice and Social Policy

1st session, 37th Parliament | 1re session, 37e législature
Tue 31 Oct 2000 / Mar 31 oct 2000  

Ms Cynthia Wasser 

Thank you and good afternoon, ladies and gentlemen. As indicated, my name is Cynthia Wasser. I am a criminal defence lawyer practising in Toronto for about 15 years now.

I also sit on the executive of the criminal justice section of the Canadian Bar Association--Ontario, and Judith sits on the family law section of the Canadian Bar Association. We're here to represent the views of our two sections.

I have reviewed Bill 117 and I have the following submissions to make to all of you, that I ask you give very careful consideration to, from the perspective of criminal defence lawyers and crown attorneys who make up the executive to the criminal justice section.

In the explanatory note attached to the bill, which I believe was also the statement of the Attorney General, it is indicated that the purpose of this bill is to provide for intervention in cases of domestic violence beyond that which is allowed under the current law.

Clearly, the intent of this bill is to address domestic violence, the cases that are prosecuted in the criminal courts, and the bill indicates that it will be enforced by peace officers under the Criminal Code. This concerns those of us who practise in criminal law for the following reasons.

First, if we look to the definitions section, under subsections 1(2) and (3), domestic violence is defined as having occurred whether or not a charge has been laid, dismissed, withdrawn or a conviction has been or could be obtained. In our view, this bill may very well be creating a new criminal offence. This raises concerns about the constitutionality of the bill, as the province, as we all know, cannot legislate in the area of criminal law.

What the bill does is create a framework whereby the applicant applies to a court for an order, the breach of which is a criminal offence. It is not, however, a prerequisite that the criminal offence has been or is about to be committed. In fact, an accused person may have been charged with an assault and acquitted, vindicated even, and then the applicant may still apply for an order based upon the very facts alleged at the criminal trial. If the order is breached, that person is subjected to another criminal trial.

Next, under subsection 3(1), the court may make the order if it is satisfied on a balance of probabilities that domestic violence has occurred. This utilizes, of course, the civil standard of proof to make a finding of a criminal matter. This raises issues of constitutionality as well.

It also concerns us that it could create an abuse of the criminal court system. Further evidence of this possibility of abuse is found in the definition of domestic assault under subsection 1(2). It includes an assortment of offences punishable under the Criminal Code already. Assault causing bodily harm, threatening, physical confinement, sexual assault, sexual exploitation and criminal harassment are all currently found in the Criminal Code. Therefore, the code covers all aspects of the definition of domestic violence already. If the Criminal Code is not available because the police do not have reasonable grounds to lay a charge or the prosecutor does not feel there is a reasonable prospect of conviction, then the use of provincial legislation may be ultra vires and abusive.

There are other problems with the definition section as well. Insofar as the bill creates a statutory obligation to refrain from acting in a criminal manner, it imposes as well an obligation to act positively in a certain manner as domestic violence is very broadly defined to include "omissions" that cause bodily harm or damage to property. In the extreme examples, which would have to be litigated if an applicant applied to court, you could find the abuse in court in the following situations. If the respondent refuses to fix something in the house and damage occurs, the section kicks in because there is property damage. An order may not be obtained, but parties would be forced to litigate. Does it also include the threat of refusing to babysit by one partner, which could therefore potentially cause bodily harm to the child if the other is leaving the house?

It includes "omissions" that cause the applicant to fear for his or her safety. What are those? It includes a threat that causes the applicant to fear for his or her safety. This creates a legislative framework for the "yell at your spouse and lose your house" principle.

It also includes "sexual molestation." This is not defined in the bill nor in the Criminal Code. What is it?

It includes "recording" any person in such a way as to cause them to fear for their safety. "Recording" is not defined in the bill. The Criminal Code, section 184, defines unlawful interceptions, but they do not apply to someone who is part of the conversation and thereby giving consent.

The definition of "applicant" under section 2 causes concern. It is very broad. It includes former spouses who may have already settled family asset claims. It includes people who cohabited for any period of time, even if they are not cohabiting at the time of the application. Therefore if the respondent lived with someone for only one week and it did not work out, that person is entitled to apply, thereby causing abuse in the court system.

It includes those in dating relationships or who were in dating relationships, but this is not defined. So theoretically, the respondent may have dated somebody a few times several months in the past and would find themselves subjected to the litigation. On September 27 the Attorney General indicated in announcing the bill that we would also be the first province in Canada to expand the definition of domestic violence to include people in dating relationships. However, it is important to note that the Criminal Code of Canada does not exclude dates from being victims of assault, sexual assault or other offences.

The bill also includes relatives of the respondent as applicants if they've lived with the respondent, such as children--with an age restriction of 16 only. Therefore a teenager who wants something may use the act in an abusive way.

The contents of the order, under subsection 3(2), also concern us. These people are able to obtain an order granting them temporary possession and exclusive use of specified property. They can take over the family cottage, credit cards, and bank accounts, even if they were only in a dating relationship, or if they were children.

The bill grants the applicant exclusive possession of the residence shared by the applicant and the respondent regardless of ownership and regardless of the length of the cohabitation period. These are excessive.

Under subsection 4(7), the bill says that it prevails over other civil orders, including the Divorce Act, which is federal legislation. This may be unconstitutional.

Under the Criminal Code, it is believed that subsection 127(1) will be used to prosecute the breach of order, although the bill does not specify this. Section 127 of the Criminal Code states that disobeying a lawful order made by a court is an indictable offence that can be punished by a term of imprisonment not exceeding two years. It excludes orders for payment of money to be used under this section, so that will not be enforceable under 127.

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The Attorney General's announcement on September 27 states that these breaches will be prosecuted in the domestic violence courts specifically created by Ontario in the Ontario Court of Justice. However, section 127 is an indictable offence, and the accused is entitled to elect to be tried by a court composed of a judge and jury in the Superior Court of Justice. Accordingly, the trial will not take place in the domestic violence court and it will take longer to prosecute the breach, which I believe is not the intent. Because the term of imprisonment is less than a two-year period if the breach is not a violent one, a conditional sentence might be an option pronounced upon the accused, if convicted.

At this particular time, the Attorney General has directed the crown attorneys to oppose conditional sentences in violent cases. If they do so, the likelihood of resolution or a guilty plea is very poor.

I'm going to be brief because I understand that I might be running out of time and Judith does wish to address you.

I want to make it clear that under the current legislation the breach is prosecuted as a summary conviction offence in the Ontario Court of Justice, and conditional sentences are not an option under the current law. By using section 127 of the Criminal Code, that will be taken away. It will take longer to prosecute and the jail sentences that people may be looking for will not be available.

It is the view of the criminal justice section that the current legislation can be amended to address the concerns of the Attorney General in a more fair and more efficient way for all people involved, including the victims.


From the Hansard

Standing committee on Justice and Social Policy

1st session, 37th Parliament | 1re session, 37e législature
Tue 24 Oct 2000 / Mar 24 oct 2000  

Walter Fox

The Acting Chair: I would like to now call upon Mr Walter Fox, please. Welcome. Please proceed.

Mr Walter Fox: Hello. I don't think I'll be very long at all. My name is Walter Fox. I happen to be a criminal lawyer and I'm here representing no one but myself.

It came to my attention yesterday morning that this legislation was actually coming forward. At that time I spoke to the person who arranges for people to come and speak and I was slotted in for this afternoon. I've spent two busy working days--I tend to be in a criminal courtroom every working day of my life--and I thought very long and hard about what I might say, between making submissions to judicial officers, to this committee.

The first thing that occurred to me, having a quick look at this legislation, was that you really need to know what's going on in the real world. I came in late and I only heard three speakers. It seems to me they're getting that message across.

I also recall that during a nomination convention when Jean Chrétien was nominated as leader of the Liberal Party--I believe it was 1983 or 1984--he said, "Do not adjust your set. What you see is what you're going to get." It seems to me you're going to hear a lot more of what you've heard so far today.

I would like to point out to you that you will hear from groups, usually women's groups, that those groups are funded. The men who come before you today or in the course of these hearings come before you at their own expense, with no funding from anyone. Keep in mind, most often these are men who are paying support and sometimes are working at two and three jobs. They're here to tell you the harm and the difficulty and the problems that the existing regime in family law is creating for them and how this particular legislation will make it even worse.

1710

It's pretty clear to anyone who's got any legal training that this is criminal legislation in the guise of a provincial statute. The scheme, the regime, here is some vague definition of what might or might not constitute domestic violence. Then we go through some kind of court process which is a bastardization of anything we've seen before and at the end of it we come out with an order, and you can go to jail for violating that order. It's a pretty transparent scheme to create criminal law without the usual safeguards that Canadians have always taken for granted, things that are now enshrined in the charter and originated in the common law and started way back with the Magna Carta. It seems that the ideological winds are blowing so strongly that they're going to sweep away basic protections that every Canadian expects to have living in this country in the name of some ideological objective which has no basis in statistics or in anything to do with the real world. That's the first view of this legislation.

Consider the legal, political and cultural context in which this legislation lands. We have a family law system which is basically "winner take all." Mom gets custody. Maybe that should be the law. As you read the law, it says the person who can best provide for the best interests of the child will get custody. As a practical matter, mom gets custody. It beats me. Why don't we just say, "In any custody dispute, custody will be presumed in favour of mother." I don't understand why we can't admit that publicly. Maybe that ought to be the law. But we can't, and the debate gets obscured because the best interests of the child come to be defined as the best caregiver or the primary caregiver and it goes off the rails.

Once mom gets custody, she gets the house, she gets spousal support and she gets child support. That's a pretty big prize. That's a pretty big incentive for somebody to maybe do something that's not proper. But the family law as it exists fails us because there's no control. If mom lies to a judge, if mom files a false affidavit, how does that detract from her being the primary caregiver? How does that detract from giving her custody? So we're caught in an environment where mom is going to get custody and everything is going to flow from that, and now you throw in this legislation and the fun starts.

One of the open secrets among family lawyers is that once a court order is made, be it what's called "interim interim" or "interim," that order can rarely be changed, because you can't get back into court, because there are no controls. Technically, what happens is that mom files an affidavit and she says, "Dad has sex with chickens. I know. The neighbours saw it," and on the basis of that allegation she gets custody, the house, support and whatever. Dad moves to cross-examine her. She doesn't show up for the cross-examination. In civil litigation, she would be liable in costs. She might have her case struck out. Not in family law. All that happens is, she doesn't show up. Well, then she doesn't show up the third time or the fourth time. Well, maybe she does show up to be cross-examined, but she leaves. There is no control over her conduct once she has an order.

Understand that clearly and then you'll understand what one of the serious problems in this legislation is, because the legislation provides that you can make the one-shout-in-the-house allegation--the newspapers talk about one shout and you're out. It isn't even that good. It's an allegation of a shout. It doesn't mean you actually shouted; somebody just thought you shouted. [Actually it's worse than that. "Somebody" doesn't have to think that you shouted (who'll prove what somebody really thought anyway).  All that is needed to get the 'legal' process launched that will deprive you of anything you have — including your right to a fair trial — is for "somebody" to claim that you shouted. —WHS]

There are two alternatives. It can go by way of notice--you serve the other side and they come to court and maybe they argue it out--or you go the emergency route. Guess what happens; guess what's going to happen. It's going to be the emergency route nine times out of 10.

"Don't worry about it, Mr Fox. The emergency route provides that within 30 days you come back to court." Well, on day 12 she can't come to court because the children have a cold, on day 16 her lawyer is in another court, and on and on with no control. Does the legislation say that if she doesn't show up within the 30 days to really discuss the issue in a fair and open way, she loses the order? It doesn't say that. Within half a kilometre of where we're sitting there are probably a 1,000 lawyers who can tell you, "Give me this order and I'll protect it and I'll make sure it doesn't get into court for two years. I don't care what the legislation says, because I know how to delay, I know how to adjourn, especially if I'm acting for a mother, and she never has to pay costs."

One last thing. At a certain level this legislation is a version of strengthening what are called restraining orders. There's no one thing that's a restraining order. A bail condition can be a restraining order, a probation order can be a restraining order and maybe what is contemplated by this legislation can be a restraining order.

One of the facts that everyone in the criminal courts knows is that when he's arrested, he's held overnight, he's brought to court the next morning and he's told he can't go home. If it's Friday morning, Wednesday morning, it doesn't matter; he can't go home. Well, she's stuck because the in-laws are coming for the weekend, the mortgage payment is due, they've got to close the cottage, any one of a thousand domestic things. There is a court order, based on her fear of him, that he can't communicate with her. She phones him with impunity; she calls him. He takes the call: "The children are stuck in the car somewhere. I need the insurance policy." He answers the question. Guess what. They're both in violation of that court order. Any lawyer worth his salt will tell you that they're both in violation of that court order, but she won't get charged. He will. That's how it works.

Everybody in the criminal courtroom knows, and I was quoted in the press with this statement--the judge knows, the prosecutor knows, the defence lawyer knows, the person who sweeps up the court knows--that that court order prohibiting him from contacting her will be violated by her. We have no reason to believe that it won't be violated by her in these circumstances as well.

Just to follow up and finish this particular one off: I was quoted in the press as saying that. I was in the old city hall. That's as far as I'll go in identifying anyone. Sorry--I was in the East Mall one morning, and the justice of the peace stopped me and in open court said, "I saw what you said in the paper. I agree with you. We all know that's how it works and that's what's going on." There may even be a transcript of those remarks. Later that morning I bumped into another justice of the peace, one from the old city hall, and he said to me, "You know, you're absolutely right. That's how these orders work. Everybody knows that she's going to violate the order."

Keeping all of that in mind, I can't imagine what you hope to accomplish with this kind of legislation except maybe to keep the cold winds that blow out of the Toronto Star and out of the Globe and Mail from blowing in here and somehow dissipating your votes. It makes no sense to me. I'm not a politician; I'm only a criminal lawyer.

Those are my submissions. I hope they're of some use to you. Are there any questions?

Mr Bryant: Let me just understand: are you saying that these legislative changes are going to have no effect?

Mr Fox: No. They're going to make everything that's going on worse. They're moving in the wrong direction. They're not dealing with reality.

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Mr Bryant: I take it you're not referring to the vast majority of victims of domestic violence who don't turn to the criminal justice system, or is that what you're talking about?

Mr Fox: What vast majority of victims who don't turn to the criminal justice system? What group are you talking about? What numbers are we talking about?

Mr Bryant: I'm talking about the 75% of women who do not go to the criminal justice system.

Mr Fox: How do you know that?

Mr Bryant: Because I go to women's shelters. We go to groups. We meet with police officers. We know of these victims.

Mr Fox: I'm not certainly buying that line. I know all about the kinds of statistics that you are talking about, the one-sided statistics where there are no data: the famous survey that was taken of 13 women in a shelter in San Diego, California, in 1976 and trumpeted that 98% of women in Canada will be sexually assaulted. I know about those statistics.

Mr Bryant: I think those are all my questions.
...
Mr Fox: Family law is not law by any definition we would ordinarily follow. Most law ends up with a trial. Most law ends up with an ability to go before a court. A contract is meaningless unless you can have a trial somewhere down the road to enforce it. You hope that the law is done so well by the court and by the legislation that you rarely have to go to court, but all contracts have to be interpreted against the background of a court.

In family law there's absolutely nothing resembling this. Family law lawyers will tell you that they are proud of the fact that only 3% of family law cases get to trial. That's the number they use: 3%. They say, "That means we're doing such a good job that 97% of our cases settle." Madam Justice Kiteley, relying on a decision by Madam Justice L'Heureux-Dubé and the rest of the Supreme Court of Canada, has just told us that settlements and agreements in family law are worthless. They don't mean anything. They can be reviewed and revised and revamped at any time. To me it's demeaning to women, it infantilizes women, but that's what the law tells us. So now you have a legal system where you can't get a trial and the settlements are not binding. Who wants to practise in that area?

Mr Guzzo: Unfortunately, some of us do. But let me just make the point for the committee that on that we do agree. There is a consistent point with Ottawa-Carleton, and let me tell you, as a former provincial judge sitting in numerous areas around this province, including Toronto, that's a constant factor right through this province. That is a fact of life right through this province, and the 3% might be high. Coming from Ottawa-Carleton, I was interested in Mr Windsor's comments. I don't think you were here. He mentioned the children's aid society report done on Ottawa-Carleton that suggested that two thirds, 66%, of the allegations were proven to be misleading, false allegations with regard to abuse. If I recall that study, it applied to allegations against children, which is again the common thread. Do you have any difficulty with that figure?

Mr Fox: I think that figure is low. Without getting into the statistics and my disagreement with Mr Bryant as to what constitutes proper statistical methodology, the incentive is there. If nothing happens to you if you lie in court or if you lie in affidavits, and you get the big prize, which is custody of the children and the house and the support payments and all of that, why wouldn't you do it?

Mr Guzzo: Are you suggesting that two thirds of lawyers practising matrimonial law in Toronto would insert some form of an allegation in documentation that would lead a provincial court judge or a Unified Family Court judge hearing an interim application to believe that there was a threat of violence, a threat against the child or against the spouse?

Mr Fox: I'm not sure I understand your question. Is your question, would lawyers do it? Let's start with, clients would do it. Let's start with that. Would lawyers do it? Lawyers will take the position, "I don't know. I wasn't there. These are the instructions I've received and this is the procedure I'm going to follow."

I've always felt that if you want to clean out half of the family law files, clean out half the paperwork, you just have to lay a charge on one father's lawyer and one mother's lawyer for filing false affidavits. You don't even have to get them convicted; just let them know they're not immune, and I think you'd clean up half the paperwork out of those courts overnight.

The Chair: Thank you very much, Mr Fox.


Those, along with Senator Anne C. Cools, are the voices of reason.  It is obvious that people like Mr. Bryant and Mr. Guzzo have their minds made up.  There is no possible way anyone will confuse them with facts.

Back to Sen. Cools' presentation

__________________
Posted 2000 12 16
Updates:
2001 03 26 (format changes)