ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Sean Foessl
Applicant
– and –
The Attorney General of Ontario
Respondent
Trent Falldien, for the Applicant
Josh Hunter, for the Respondent
HEARD: June 29, 2015
DECISION ON APPLICATION
Hennessy J.
1The applicant Sean Foessl brought this application for a declaration that the name “Domestic Violence Court” be deemed invalid and for an order that the name “Domestic Violence Court” be changed to the name “Domestic Court”.
2The applicant alleges that the name of the court violates his constitutional rights under ss. 7, 12 and 15 of the Canadian Charter of Rights and Freedoms.
3The respondent The Attorney General of Ontario takes the position that the applicant has not met his burden of demonstrating a breach of any section of the Charter.
Background Facts
4The applicant was charged with assaulting his son. The allegation was made by the applicant’s former domestic partner, the boy’s mother. One of the conditions of his bail was that the applicant was not to attend the house of his former domestic partner. The applicant did attend the house and was charged with a breach of recognizance and obstruct police.
5The breach charges were assigned to Domestic Violence Court (“DV Court”) where the applicant attended for several pre-trial appearances.
6Immediately prior to the judicial pre-trial, the prosecuting Crown realized that the matter had been assigned to DV Court in error. This assignment was based on the assumption that the underlying assault involved the former domestic partner. DV Court only deals with matters between intimate partners. Upon discovery of this improper assignment, the prosecuting Crown Attorney advised defence counsel and the court and the charges were transferred to regular Criminal Court in the Ontario Court of Justice where the applicant was tried and acquitted.
Position of the Applicant
7The nub of the applicant’s position is that he felt intimidated, disadvantaged and stigmatized throughout the time his matter was in DV Court. This period included a number of appearances and a judicial pre-trial. These feelings, argued the applicant, arose from the fact that the court had the word “violence” in its name when in fact the breach charge did not involve or allege any violence.
8In his affidavit, the applicant reported as follows:
“I feel prejudiced and intimidated that I have appeared in DV Court on five different occasions.” (para. 26)
“I feel that I have been stigmatized as a result of the ‘domestic violence’ label and my efforts to change the name. I feel that this stigmatisation has affected resolution possibilities of the breach charges.” (para. 27)
9The applicant also asserted that he was of the view that this stigmatisation influenced the Crown’s conduct with respect to disclosure and requests to amend the recognizance.
10The applicant further asserted that he felt that the name “Domestic Violence Court” exploited his vulnerable defense position vis-à-vis negotiating with the Crown during the pre-trial process.
11The applicant filed an expert report from psychologist Dr. Michel Lariviere. Dr. Lariviere has a clinical practice and appointments at Laurentian University in the Schools of Graduate Studies and Human Kinetics and the Northern Ontario School of Medicine. He had 20 years of experience with the federal correctional system.
12Dr. Lariviere was asked for his opinion on the labelling, stigmatising and/or stereotypes, from a “macro-social perspective”, associated with using the word “violence” as a descriptor in the name “Domestic Violence Court”. Dr. Lariviere did not meet with the applicant. Dr. Lariviere was not asked for an opinion with respect to the effect the court’s name had upon the applicant’s psychological integrity.
13The essence of Dr. Lariviere’s opinion is found in the following statement from his report:
I am not able to conclude that the stigmatization reported by Mr. Foessl is genuine, given that I have never treated him. That said, I am able to offer my opinion that the stigmatization and intimidation reported by Mr. Foessl in his circumstances is consistent with the stigmas reported by several accused and incarcerated individuals which I have treated.
14Dr. Lariviere went on to say in his report:
In my professional opinion, appearance before any court is stigmatizing and labelling regardless of the name. Responding to a court which uses the word ‘violence’ as a descriptor in its name would incrementally add to any stigmatization and labelling. ….
In my professional opinion, non-violent and innocent offenders would be exceptionally prejudiced by the stigmatization and labelling associated with the name ‘Domestic Violence Court’ because they stand to lose more.
Position of the Respondent
15Although the applicant made it clear that he was not challenging the existence or valid purpose of DV Court, the respondent took some pains to set out the history of DV Courts in Ontario. Suffice to say that in the early 1980’s specialized domestic violence courts were established in Canada, the United States, United Kingdom, Australia and New Zealand, in response to calls for improvements in the manner in which law enforcement, prosecution services and courts dealt with domestic violence. Many of the features of DV Courts originated in recommendations from a coroner’s inquest into a domestic homicide.
16The DV courts were designed to respond to violence within intimate relationships, otherwise referred to as domestic relationships.
17The name “Domestic Violence Court” is an informal moniker used throughout the system to refer to certain sittings of the Ontario Court of Justice. Judges, prosecutors, court clerks, police officers, all refer to DV or Domestic Violence Court. It is held on specific days with dedicated and trained teams of Crown Attorneys and Victim/Witness Assistance Program staff. DV Court does its own screening of cases and offers specialized intake. The comprehensive court model was established in Sudbury in 2000.
18The respondent argued that the applicant had not established that the name “Domestic Violence Court” infringes his ss.7, 12 or 15 rights.
Discussion
• Section 7 – Security of the Person
19With respect to the claim that the name of the court has infringed the applicant’s security of the person rights under s. 7 of the Charter, the applicant must prove on the balance of probabilities that he has suffered state action that “had a serious and profound effect on his psychological integrity” as a result of his appearances in DV Court. The applicant’s subjective belief that he was prejudiced, intimidated or stigmatized is insufficient to objectively meet this test. (Blencoe v. British Columbia (Human Rights Commission), 2000 SCC 44 at paras.81-86, [2000] 2 S.C.R. 307)
20At its best, the evidence before the court is that the applicant “feels prejudiced and intimidated by the labelling associated with the name “Domestic Violence Court”. He felt intimidated by the word violence in answering these charges.
21There is no evidence before this court that the applicant had personally suffered stigma sufficient to engage his s. 7 security of the person interest.
22The expert witness did not give any opinion on evidence on whether the applicant had been stigmatized. These “feelings” of the applicant were provided to Dr. Lariviere by counsel for the applicant. Dr. Lariviere has not attended DV Court, is not familiar with the scope of its mandate and was not aware that many of the charges heard by that court, (e.g., breaches) do not involve violent conduct.
23A s. 7 analysis requires the court to look first at whether there has been a deprivation of the right to life, liberty and security of the person. If the court finds such a deprivation, it must assess whether the deprivation is not in accordance with any principles of fundamental justice.
24Notwithstanding claims of stigmatization and prejudice, the applicant had an entirely positive experience with the Children’s Aid Society during the time his matter was before DV Court. They supported his request to vary his bail conditions and for his son to live with him in early 2014. Similarly there is no evidence that the appearance in DV Court affected in any way the Crown disclosure decisions or resolution discussions.
25The potential of stigmatization is one of the “unavoidable consequences of an open and adversarial justice system”. Merely being charged with a crime is not sufficient to engage one’s security of person rights. (Blencoe supra at paras. 87-95 and New Brunswick (Minister of Health) v. G.(J.), 1999 653 (SCC), [1999] 3 S.C.R. 46 at paras. 58-67.) Any possible stigmatization felt by the applicant should reasonably and objectively have been cured by the transfer of his matter out of DV Court. In any event, it is evident by the applicant’s acquittal on the breach charges that he was fully able to defend himself, without being prejudiced by his appearances in DV Court.
26On the second stage of analysis under s. 7, the court must assess whether there has been a deprivation of fundamental justice if there was a breach of the applicant’s security of person rights. Although, I have found that there was no deprivation of fundamental justice. Even if the applicant’s security of person was engaged by his appearance in DV Court, the name of the court is not overbroad as claimed. The applicant claims that the use of the word violence is unnecessary, overbroad and improper administration of justice. Overbreadth is a distinct principle of fundamental justice related to arbitrariness.
27The question is whether the objectives of DV Court are rationally connected to the effect the name of the court has on all those who are properly before it. The applicant must show that there is no rational connection between the law’s objectives and its impacts. There is no dispute that the establishment of dedicated DV Courts, with their specialized personnel, is rationally connected to valid governmental purpose of combatting domestic violence through the expeditious disposition of cases, the monitoring of witnesses, complainants and accused persons and the proper collection of data. I find it obvious and non-controversial that the name of the court is rationally connected to the purpose and scope of the court.
• Section 12 – Cruel and Unusual Punishment
28The applicant also claims a violation of his s. 12 Charter rights, that the name of the court constitutes cruel and unusual punishment. The applicant argues that the word punishment also includes treatment. I do not find that naming the court the “Domestic Violence Court” is a treatment in any sense of this word as it has been understood in a s. 12 analysis.
29Treatment has been interpreted to include deportation, strip searches and medical treatment imposed without consent. (Rodriguez v. British Columbia (A.G.), 1993 75 (SCC), [1993] 3 S.C.R. 519 at 608-12).
30To be cruel and unusual treatment or punishment, it must be more than merely excessive. It must be so excessive as to outrage standards of decency and disproportionate to the extent that Canadians would find it abhorrent or intolerable. The applicant pushes the bounds of credulity in making this argument. The court was designed to deal with domestic violence. The applicant does not challenge the establishment of this specialized court as a legitimate and responsible response to a serious social issue. To give the court a name that coincides with its very mandate does not shock or outrage informed Canadians.
• Section 15 – The Right to Equality
31The applicant claims that he has been discriminated against on the basis of his domestic status, which he claims is an analogous ground. While marital status has been found to be an analogous ground, I cannot agree that this leads, as the applicant argues, to the logical conclusion that domestic status is also analogous. The applicant cannot and does not try to articulate the group to which he belongs that can be defined or identified in any objective way. It cannot be the group of people who are now or who were at any point in any domestic relationship. The court does not purport to deal with any other types of legal disputes between those involved in intimate relationships, i.e., torts or civil disputes. The court’s sole mandate covers matters related to allegations of acts of violence within the context of intimate relationships.
32In the situation of DV Courts, the domestic status of individuals arises from the fact that the parties were in an intimate relationship at the time of the offence. It may be a very brief intimate relationship, i.e., a singular encounter or dating. This group of individuals is not a discrete and insular minority that can be considered an analogous ground. There is no homogeneity to this group. Perpetrators of domestic violence, or those charged with it, come from every strata of society, every age group and every race. Domestic violence is not limited to one gender, although the gender representation is far from balanced and it is blind to sexual orientation. These relationships have no other legal recognition or status; they may be temporary or long term. The relationship may be publicly known or completely secret. The relationship is not an inherent characteristic of a person.
33In any event, the naming of DV Court does not perpetrate any arbitrary disadvantage against the applicant or any other person or member of any group who appears there. The name simply and accurately reflects the scope of the work of the court to determine allegations of domestic violence; that is allegations of violence between persons in intimate relationships.
Finding
34The application is dismissed.
35I encourage the parties to try to settle the costs of this motion. If they cannot, the respondent may serve and file with the trial-coordinator written cost submissions together with a bill of costs by August 28, 2015. The applicant may serve and file with the trial-coordinator responding written cost submissions by September 15, 2015. The cost submissions shall not exceed two pages in length, excluding the bill of costs.
The Honourable Madam Justice Patricia C. Hennessy
Released: August 11, 2015
COURT FILE NO.: 12680-14
DATE: 2015-08-11
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Sean Foessl
Applicant
– and –
The Attorney General of Ontario
Respondent
DECISION ON APPLICATION
Hennessy J.
Released: August 11, 2015