Mandatory charging is a policy in place across Canada that requires police to lay charges in domestic violence cases where the officer involved believes there is a reasonable likelihood of getting a conviction, whether or not the victim wants a charge to be laid.
In order to understand the challenges this has created, it is helpful to look back at the history that led to the implementation of this approach.
Before the 1980s, violence against women was largely considered to be a private matter, best kept behind closed doors. Legislation – both criminal and family – to respond to violence against women was limited. Few, if any, professionals (including police, lawyers, court staff, judges, child protection workers, medical personnel, etc.) had received any kind of training or education on the issue of violence against women and appropriate responses to it.
As a result, when a woman reported the violence she was experiencing – whether to a family member, friend, religious leader, police officer or family doctor – she was often treated with disbelief, scorn or the suggestion that she must have contributed to the problem and/or was responsible for solving it.
Often, the police response tended towards the dismissive with the responding officer asking the woman, while she was in the presence of her abuser, whether she wanted to lay charges against him. For reasons that are obvious to us now, many women declined, and few perpetrators of woman abuse were arrested or charged.
In the 1980s, government at both the federal and provincial levels began to recognize that violence against women was a serious social problem requiring a legislative response. Over this decade, various “mandatory charging” policies came into effect across Canada. These policies directed police officers to lay charges in “domestic violence” cases where the police officer believed there was evidence to support such a charge. This approach removed the responsibility for making this decision from the woman and placed it properly with the responding police officer, as is the case in other areas of criminal law.
Through the 1980s, 1990s and early 2000s, the issue of violence against women received considerable attention. Increased training became available to police officers and others involved in the criminal system. Many police forces developed specialized domestic violence units, which were staffed by police officers who had had extensive training and who had indicated a particular interest in working on this issue. Communities developed collaborative working agreements among those involved in responding to violence against women – shelters, hospitals, child protection authorities, the police and others.
As well, the laws themselves became more responsive to violence against women. For example, in the mid-1990s the behaviour of stalking became criminalized as the offence of criminal harassment.
At the same time, public awareness about the issue of violence against women increased enormously, and child protection authorities began to recognize that there was a negative impact on children who lived in homes where their mothers were being abused.
All of this had a positive impact on how reports of violence against women were handled by the criminal system. However, unintended negative consequences growing from mandatory charging practices began to be identified.
In particular, we began to see inappropriate charging of women based on misleading information provided to the police by the male partner/primary abuser and/or on biases or lack of awareness on the part of the police.
Other challenges included the differential use of mandatory charging policies in cases involving same sex, racialized, poor and otherwise marginalized families.
Another significant and unintended consequence of mandatory charging policies has been the laying of charges in situations where women explicitly do not want them laid. There can be many reasons a woman does not want her partner charged. She may have had a negative experience with the criminal process in the past, be worried about the loss of family income if her partner goes to jail or concerned she cannot manage the children on her own. Immigration problems for herself or her partner may arise as a result of criminal charges being laid. She may be worried that child protection authorities could become involved with the family. Many women fear that the violence will escalate if criminal charges are laid.
Perhaps most important, many women simply do not know that once they call the police (or the police are called by a third party, such as a child or a neighbour) they will lose control over what happens. Many women call the police because they need assistance in the moment, but have no intention of having their partner charged with a criminal offence.
On the other hand, many women have found mandatory charging policies helpful. They have been able to call the police, who then lay appropriate charges. The woman then may feel that her abuser’s behaviour is being taken seriously. For some women, this is an important step in beginning to address the violence they have been experiencing.
In other words, the impacts of mandatory charging are many and complex. While there is no doubt that it was critically important 30 years ago to raise awareness about the seriousness of violence against women, it is not clear that, as presently implemented, it remains an appropriate or effective strategy for addressing violence against women.