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November 24, 2013 by Robert Franklin, Esq.

A judge in British Columbia excoriated prosecutors in domestic violence cases for kowtowing to “special interests” and failing to exercise their own judgment about what cases to bring to trial and which ones not to. As reported to The Lawyers Weekly, Judge Brian Saunderson said that prosecutors were applying a “double standard” under which, “men but not women [are] prosecuted in spousal abuse cases.”

Judge Brian Saunderson said special interest organizations such as victims’ groups, women’s groups and ethnic organizations have put so much pressure on Crown counsel that they now lay charges against the man in all spousal assault cases.

“There is the concern that displeasing an interest group may have adverse consequences,” he said, adding prosecutors “do not represent groups or individuals.”

“They represent the State and must act in the best interests of the State. Sometimes those interests do not coincide with the interests of pressure groups.”

Saunderson used the example of Darryl Arsenault and his common-law wife, Susan Himmer to illustrate the point.

The judge ruled Arsenault was defending himself when he slapped Himmer after she verbally abused him and assaulted him.

Himmer testified that she was drunk and in “an out of control” rampage after Arsenault’s ex-wife insulted her.

Judge Saunderson found that Himmer slapped Arsenault, yelled obscenities at him, threw a glass bowl at his head and smashed a five-tier shelving unit and some glass lampshades.

He ruled Arsenault slapped Himmer and wrestled her to the ground in an attempt to calm her down and prevent her from driving.

There was no history of violence and Himmer was “embarrassed” by the incident, Judge Saunderson added…

“The mere fact of this prosecution sends a very clear message: a woman in a relationship with a man can provoke him, degrade him, strike him and throw objects at him with impunity, but if he offers the least physical response, he will be charged with assault.

Judge Saunderson had obviously seen the Crown’s act before, probably many times. He was fed up with prosecutors’ unwillingness to simply look at allegations of domestic violence like all other criminal allegations and make an educated judgment about which ones can be proven and which can’t be. He rightly pointed out that women who make such allegations are, effectively, always believed by prosecutors, while men, be they complainants or the accused, are not.

Needless to say, prosecutors responded by saying they make judgment calls every day and would never treat men and women differently in those decisions. But a closer look at what obviously happened and the prosecutor’s defense of the Crown’s actions demonstrate that defense to be shaky at best.

Although the article (for which I sadly don’t have a link) doesn’t go into detail, consider what must have happened after Arsenault pinned his drunk and rampaging wife to the floor. (Note that he did so to keep her from driving away. As such, he preserved not only Himmer’s safety, but that of the general public. He also prevented her from being arrested for DUI.) Somehow, the police were contacted. My guess is that Himmer was the one to do that, but whoever did it, Arsenault was the one arrested.

Now, the prosecutor in the case responded to the judge this way:

[Crown prosecutor Bob] Gillen said the original police report to Crown counsel in the Arsenault case described a much more serious assault and made no mention of Himmer’s actions other than the thrown bowl.

Relying on the report, the Crown decided to lay charges against Arsenault, Gillen said.

He added that the evidence that came out at trial was quite different from what was in the police report.

Assuming what Gillen said is true, it says quite a bit about what transpired between the police being called to the scene of the incident and Arsenault’s trial. For example, it says the police made their report without including anything Arsenault likely told them about it. It also means that Himmer lied to the police.

Perhaps worse, it also means that the prosecutor in the case failed to ask Arsenault or his lawyer anything about the case. It also means that the prosecutor refused to consider the fact that Himmer, once she’d sobered up, tried desperately to get the Crown to drop the charges.

[Arsenault’s lawyer Douglas] Schofield, who was a prosecutor in Canada and Bermuda for 17 years, said defense counsel can usually talk the Crown out of proceeding if there is a valid defense, but not in spousal assault cases.

In short, Gillen’s effort to defend the behavior of prosecutors looks very much like an indictment of them. All the information the Crown needed to dismiss the charges before trial (or not bring them in the first place) was readily available from Himmer and Arsenault’s lawyer. But the Crown went to trial anyway and got poured out by a judge who’s none too happy with their failure to exercise the usual prosecutorial discretion in DV cases. In other words, the judge was right.

But those aren’t the only words by which prosecutors in the Arsenault case hung themselves. Recall that Judge Saunderson pointed out that the whole process created a double standard whereby men who are alleged to have committed spousal abuse are prosecuted, but the Crown ignores the same behavior in women.

Gillen said Crown counsel’s spousal assault policy is guided by a general policy to stop violence against women and children.

Just so. Let’s see, Mr. Gillen. The judge accuses you of creating a double standard under which only men are prosecuted for domestic violence and you try to disprove his assertion by citing a “general policy to stop violence against women and children.” Why not just say “mea culpa, guilty as charged?”

But of course Gillen needn’t have said a word. The facts of the case prove what Judge Saunderson was saying.

He criticized the Crown for not charging Himmer for her assaults saying it created a double standard.

Yes, that does seem to be the case, doesn’t it? The man was charged for an incident in which he was attempting to protect a drunken woman and the public from her reckless actions. She committed far more violence than he did and his was only in response to hers. She tried to get the Crown to drop the charges, but the prosecutor wasn’t interested in what she had to say. So the prosecutor was surprised at trial by what her evidence actually was. And finally, having admitted her violence against Arsenault under oath in court, prosecutors can’t manage to bring a charge of assault against Himmer.

A double standard? I’d say so. How about an utter waste of taxpayers’ money? Yep, that too.

Now for the kicker — this case happened in 1999. The point being that we’ve known this stuff for at least that long. A judge pointed out essentially everything we need to know about domestic violence prosecutions over 14 years ago, but we’re still doing the same things. It was wrong then, and it’s wrong now. It was wasteful then and it’s wasteful now. And, because women are largely exempt from the consequences of their own domestic violence, because they know they’ll be believed by police and prosecutors, the double standard continues as does the waste.

Thanks to Ferrell for the heads-up.

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