'Barriers' in Canada's legal system complicating fight to end domestic violence

This story is part of Stopping Domestic Violence, a CBC News series looking at the crisis of intimate partner violence in Canada and what can be done to end it. 

Intimate partner violence makes up nearly one-third of all police-reported violent crime in this country, according to Statistics Canada, and many victims say that the legal system is complicating efforts to change this.

"Susan" knows this all too well. In fact, she lives in so much fear of her ex-husband that CBC News is not revealing her identity or location.

While they were married, Susan's husband assaulted her, strangled her and threatened to kill her. Although he was eventually found guilty of one charge of assault, he managed to drag out their divorce, and in the end, Susan walked away so financially devastated that she had to file for bankruptcy.

She said her journey through the Canadian legal system was so traumatic she regrets even reporting the abuse.

"If I could go back, I don't think I would have done this," Susan said. "I would have tried to blame myself and not say the truth about what happened. I don't think I would go through it again."

Legal experts say stories like this show how Canada's laws governing intimate partner violence are making life more difficult for victims.

Part of the reason for that is there are sometimes conflicting definitions of domestic violence, and the jurisdiction for trying to rein in the problem is divided in and can differ from province to province.

"It's those kinds of conflicts that I think show that governments in Canada don't have an overarching strategy to deal with family violence," said Jennifer Koshan, a University of Calgary law professor. "It means that we may be creating barriers to victims." 

'I was pretty terrified'

Susan said communication failures, staffing issues and a lack of clarity within the legal system put her at risk at a time when she was extremely vulnerable.

For example, she said a police officer gave her his number after she had been assaulted, but when she called, he didn't answer and his voicemail wasn't set up. 

It also took months for her ex's probation officer to check in with her. Perhaps most crucially, she didn't learn until it was too late that her ex had successfully petitioned the court to lift her restraining order against him.

"I received a call from my victims support worker, who asked me if I was somewhere safe," Susan said. "She seemed very stressed, almost panicked, and I asked her what was going on."

The worker told her that earlier that day, her husband appeared before a judge and successfully applied to have his probation and restraining order lifted. The worker told her it would expire in four days. 

"I was pretty terrified," Susan said.

Koshan and a team of law professors from across the country are mapping out all the laws and policies that govern domestic and intimate partner violence, and have discovered inconsistencies not just between provinces and territories but within the same jurisdiction. 

Different jurisdictions

Most intimate partner violence offences are handled through the Criminal Code, but it's not cut-and-dried.

"This may surprise some people, but we don't have a specific offence in our criminal code related to intimate partner violence," said Koshan.

Complicating this is the fact that domestic violence can consist of a variety of behaviours, from emotional abuse to withholding money, and some of these cross jurisdictional boundaries.

"In Alberta, for instance, emotional abuse and financial abuse are not included in the Protection Against Family Violence Act, which allows victims to get protection orders," said Koshan.

Both forms of abuse are, however, included under the province's Residential Tenancy Act and the Employment Standards Act so that victims can leave their tenancies early if they suffer emotional abuse.

In order to prove domestic violence, a tenant has to get a protection order, but in Alberta, victims can't get protection orders for emotional abuse.

Koshan said all levels of government have to come together to close the gaps in the legal system.

She said not only are the laws a patchwork from coast to coast, so are the services that go along with them. Some jurisdictions have specialized domestic violence police forces and some have specialized domestic violence courts.

In addition to making sure all courts are in sync, she said the government needs to monitor those laws to see how well they are working in practice.

No specific federal act

Last year, Canada beefed up the Criminal Code to better deal with intimate partner violence. Bill C-75 made it clear that strangulation was an elevated form of assault and allowed judges to consider a higher maximum penalty for offenders who had past convictions of IPV.

Koshan said those changes didn't go far enough, and thinks Canada should follow the lead of some U.K. countries.

In 2015, England and Wales added a specific intimate partner offense to their criminal codes to help police identify patterns of psychological abuse and coercive control. 

According to Statistics Canada, almost four-fifths (79 per cent) of victims of police-reported intimate partner violence (IPV) in 2018 were women.

Although Canada launched a national strategy to combat gender-based violence in 2017, it doesn't have a have a specific federal act, like the U.S., that addresses violence against women.

In 1994, U.S. president Bill Clinton signed the Violence Against Women Act (VAWA) into law. It criminalized some aspects of domestic violence across state lines, and unleashed renewable funding for training for law enforcement research for programs. It also mandated that protection orders issued in one state had to be enforced nationwide.

Shelley Johnson Cline with the St. Paul Intervention Project in Minnesota, a domestic violence advocacy and shelter organization, said the U.S. act was a game-changer.

"It allowed the resources for us to try something different," said Johnson Cline, whose organization receives VAWA funding. "It's about collaboration. It's about pairing together the justice system, the grassroots [to] better women's programs and to center around the victim and the victim's safety. And [the act] gives you the resources to do that … to try something different."

According to numbers from the White House, in the first 15 years of the act's existence, annual domestic violence rates dropped by 64 per cent. 

Johnson Cline said VAWA forced the country to recognize intimate partner violence as a national issue.

"I know in the United States it's happening to one out of every four females," Johnson Cline said. "That is an epidemic to me."  

'Everything is on the table'

Like many people fleeing domestic violence, Susan moved to another community. 

She supports the idea of a national act in Canada that addresses intimate partner violence.

"Maybe if it was all consolidated into one larger initiative … there could be some type of political will to really tackle this," she said. "If you ask anyone who's worked in the field or who's been an advocate for people navigating the system, you know their consensus is that there have been no improvements over the last 30 years."

She also warns that any legal change won't mean anything if the resources aren't there to make sure they are enforced.

Maryam Monsef, the federal minister for Women and Gender Equality, said she isn't opposed to the idea of a national act.

"This is all part of the conversation right now. Everything is on the table right now," Monsef said. "Gender-based violence, intimate partner violence is preventable. It's costing us way too much and we can do better — we can be better."

Monsef said she is committed to working with her counterparts across Canada and said the government will be seeking "feedback from Canadians" on the way forward.

"When it comes to gender-based violence, be it online violence, human trafficking, intimate partner violence or missing and murdered Indigenous women and girls, we are on the same page and we have to move forward together."

Additional reporting by Sylvene Gilchrist

If you need help and are in immediate danger, call 911. To find assistance in your area click here.

To read all the stories in CBC's Stopping Domestic Violence series, visit cbc.ca/stoppingdomesticviolence