Charging and Prosecution Policies in Cases of Spousal Assault: a Synthesis of Research, Academic, and Judicial Responses

6. Judicial Commentary on the Policy

Judicial commentary on the desirability or efficacy of Charging and Prosecution Policies in Cases of Spousal Assault: a Synthesis of Research, Academic, and Judicial Responses in the context of domestic violence has to date been sparse. This can likely be attributed to the fact that the ultimate role of the judge as trier of fact in a judicial process is to determine the innocence or guilt of the person charged with an offence. The fact that a particular accused is before the justice system as a result of a policy aimed at catching more offenders in the criminal justice net is largely collateral to this determination of guilt or innocence. As such, an individual judge’s perception of, or opinion on such a policy is rarely included in written reasons for decision. While Jaffe et al (1991) noted police perceptions that the judiciary was unsupportive of the mandatory charging policy, no Canadian research has to date evaluated judicial opinion on Charging and Prosecution Policies in Cases of Spousal Assault: a Synthesis of Research, Academic, and Judicial Responses .

Two fairly prominent and widely cited cases have, however, provided insight into the policy debate surrounding the Crown’s ability to compel an assaulted spouse to take the stand against his or her partner, and the consequence of proceedings against such a spouse when the spouse refuses to testify.

In R. v. McGinty (1986), 27 C.C.C. (3d) 36 (YTCA), a decision of the Yukon Territory Court of Appeal, the accused, Ms. McGinty, was charged with assault causing bodily harm in an incident involving an attack against her then-boyfriend with a meat cleaver. The issue before the Court was whether the alleged victim, Mr. McKnight, was both a competent and compellable witness for the prosecution against his spouse. Mr. McKnight had indicated to the Crown his desire not to testify.

In a decision concurred in by Taggart J.A., McLachlin J.A. (as she then was) upheld the trial judge’s decision that Mr. McKnight was both competent and compellable to testify against his spouse. It was clear to Madame Justice McLachlin that policy plays a large part in resolving the question of the compellability of a wife or husband to testify against his or her spouse in a case arising from an act of violence against the witness spouse:

On the one hand, it is desirable that persons who commit crimes of violence against their spouses be effectively prosecuted. On the other, it is contended, compelling a husband or wife to testify against his spouse will disturb marital harmony and is repugnant to fair –minded persons.

McLachlin J.A. noted that the interest of society in prosecuting persons who commit violent crimes against their spouses is vital. She also noted that, because such crimes tend to be committed in the privacy of the home, it is very often difficult to prosecute them unless the victim-spouse testifies. Whether out of fear of further abuse or pressure from the accused spouse, the battered spouse often refuses to testify at trial.

In balancing the competing interests at stake, McLachlin J.A. concluded that a rule which leaves to the husband or wife the choice of whether to testify against the aggressor spouse is more likely to be productive of family discord than prevent it. In McLachlin’s view, leaving the choice with the victim-spouse would expose him or her to further threats and violence aimed at preventing him or her from testifying, and leaves the assaulted spouse open to further recriminations if he or she chose to testify. For these reasons, McLachlin J.A. concluded that “as a matter of policy husbands and wives should be competent and compellable witnesses against each other in cases of crimes of violence perpetrated by the one against the other”.

R. v. Moore, (1986) 30 C.C.C. (3d) 328 (NTTC) involved a contempt of court proceeding in the Northwest Territories Territorial Court against an accused who refused to testify at the trial of her common law husband on a charge of assault against her. At the trial of her partner, the accused was compelled by the Crown to take the stand. The exchange between the Crown (Mr. Shipley), the witness Moore, and the judge went as follows:

Crown:
And do you recall what happened on the 11th of August this year?
Witness:
Yeah, but I refuse to talk about it.
Crown:
You remember what happened?
Witness:
Yeah.
Crown :
Can you tell the judge what happened?
Witness:
No. All I have to say, it was my fault, because I stole that truck and…
Crown:
Well, what was your fault?
Witness:
(No verbal answer).
THE COURT:
Answer the question, please, Ms. Moore.
Witness:
I refuse to talk about it, I said.
THE COURT:
Well, I’m directing you to answer the question , Ms. Moore. You’ve taken the stand, you’ve been sworn.
Witness:
Well, I already told him before I came in here I wasn’t going to testify.
Crown:
Your Honour, Perhaps your Honour could direct the – or advise the witness as to her susceptibility to contempt charges if she refuses to answer a question that is a proper question.
THE COURT:
Ms. Moore, you’ve taken the stand, you’ve allowed yourself to be sworn; you’ve sworn to tell the truth. There has been a proper question put to you, you are under an obligation to reply to that question. If you refuse to reply to proper questions, you can be cited for contempt, and the penalties for contempt can be a fine or imprisonment or both.
Witness:
I still refuse to testify.
Crown:
Those are all the questions I have, Your Honour. I invite you to consider whether the witness should be held in contempt. I appreciate that these are very difficult matters for the court to deal with. They are difficult matters for the Crown prosecutor to deal with. And Your Honour is probably aware of similar circumstances arising in Ontario within the last year or so. The incidence of spousal assaults is such that – and the circumstances surrounding spousal assault are such that an action has to be taken by the court to prevent intimidation of witnesses and that sort of thing. I appreciate it’s somewhat unreal to sanction the allege victim in a case, but I see no other alternative, Your Honour.
THE COURT:

Well, Ms. Moore, I’m really not anxious nor am I particularly desirous of citing you for contempt; but something has – at least the Crown is alleging that something has occurred, something that’s serious and something that the court should be looking at. The matter is before the court. And if people aren’t going to testify, it destroys the whole system of justice that we have.

I’m going to adjourn this matter until this afternoon at two o’clock. I want you to think about the situation you are in. I’ve already told you, you can be cited for contempt for refusing to reply. I can only say to you that if there is any question of threat or duress or if someone is twisting your arm, so to speak, to persuade you not to speak
Witness:
No, nobody’s –
THE COURT:
-- and I would strongly suggest that you make arrangements to get some legal advice, and you can do that between now and when we deal with this case again at two o’clock. If Mr. Reid can’t assist you, he can put you in contact with lawyers from Yellowknife who can at least advise you over the telephone as to what to do. Do you understand that?
Witness:
Mm’hmm.

(R. v. Moore, supra at 331-332)

The trial judge noted that the case against Ms. Moore arose out of a policy of the federal government, applicable to the Northwest Territories, mandating that all complaints of domestic violence involving spousal assault were to be investigated immediately and prosecuted regardless of the wishes of the assaulted spouse. The trial judge also remarked that the change in policy had not had the beneficial effect originally anticipated. In the judge’s view, the indication was that in certain circumstances when victims knew that the police would lay charges they were sometimes reluctant to call police.

In the judge’s opinion, the defendant was in a sense a victim, and a deterrent sentence would only serve to increase the degree of victimization. However, the defendant’s choice not to testify totally frustrated the State’s case against the original accused and further frustrated the State’s valid interest in the protection of society and the prevention of domestic violence. The judge noted, “Too often this court has presided over spousal assault cases where the victim takes the stand and through swollen lips and with eyes bruised shut, suddenly becomes reticent and unable to recall when and how her injuries occurred.” The defendant here had, in the judge’s view, blatantly and wilfully defied the law. In the result, the judge concluded as follows:

It would appear, at least in this defendant’s situation, that the existence of the criminal court, the police and the law by itself and with the well reasoned intentions behind a policy which ultimately brought this woman to court, will not prevent spousal assaults, and will not resolve the problem of spousal assault. In my view there is nothing this court can do with respect to the matter before it, this criminal court cannot resolve all of society’s problems, one of which is being a witness who does not want to testify against her spouse. There will be a fine of one dollar.

One further case is worth noting. In R. v. Lafferty [1999] N.W.T.J. No. 66, the Northwest Territories Supreme Court heard an appeal from a spouse convicted of assault against his spouse. At trial, defence counsel had asked the trial judge to draw an adverse inference against the Crown from its failure to call the complainant as a witness in the proceedings against the accused. In his decision, the trial judge refused to draw such an adverse inference:

I’m very conscious of the obligation on the Crown to prove its case beyond a reasonable doubt and I’m doubly conscious in light of the fact that one of the witnesses – or one of the participants in this even was not called. I’m also cognizant that she’s his wife and that we’re in an era where the Crown is facing an impossible situation of calling witnesses they know may lie or recant because of a family or emotional connection with an accused. I think that sometimes if the Crown take those matters into consideration, it’s commendable that they do no taint the process by bringing witnesses into Court that patently lie.

The appellant argued that in so deciding, the trial judge in effect reversed the inference to be drawn from the complainant’s failure to take the stand. The appellant argued that the comments revealed the trial judge’s assumption that the complainant was not called because she would lie on the stand, in other words, that the trial judge drew the inference that the accused really did assault the complainant.

The Northwest Territories Supreme Court acknowledged that the comments of the trial judge were “unfortunate” (at para. 12), but rejected the appellant’s submission that the trial judge assumed the guilt of the accused on this basis. The trial judge made a thorough review of the evidence before him, and there was ample evidence upon which he could reasonably convict. There was nothing to suggest that the failure of the Crown to call the complainant as a witness influenced his conclusion that the charge had been proven beyond a reasonable doubt. The conviction was consequently upheld.

While prevailing judicial attitudes towards the implementation of Charging and Prosecution Policies in Cases of Spousal Assault: a Synthesis of Research, Academic, and Judicial Responses can certainly not be extrapolated from these three decisions, these cases do show that the courts are at least cognizant of the difficulties that such policies can present once a case reaches the courtroom. The fact scenarios that arise in each case highlight the tension that exists between the oft-competing goals of prosecutorial rigour and sensitivity to the victims of violence. It is clear that the conflict between Charging and Prosecution Policies in Cases of Spousal Assault: a Synthesis of Research, Academic, and Judicial Responses and the wishes of victims of domestic violence has not gone unrecognized in the courts.

Date modified: