Security Orders (S. 810 Ciminal Code) Homolka and Us.

Carla Homolka Gets A Raw Deal And So Do We.

I was appalled when I read about how Homolka's freedom was going to be restricted after serving her full sentence and just how easily it was done. Now, don't get me wrong. I am as disgusted by her crime as you no doubt are and would gladly have seen her executed for it, or at least sentenced to life in prison. But the authorities, in their 'wisdom', made a deal with her. However, I guess I did not realize just how easily section 810 of the criminal code could [and would] be used and abused in this case.

I have heard very little in the way of criticism of the use of section 810 in this case. All it takes to 'justify' such action is a notorious and high profile case - one where the public is guaranteed to be willing to countenance any legal excess, such as allowing the prosecutors to misuse the weapons hidden within the criminal code.

In a different context, similar misuse of prosecutorial power has already occurred numerous times in the also-notorious sex abuse prosecutions in this country where absurdities, such as testimony that "children do not lie" was given by over-zealous so-called experts, trading on our fears, resulted in false prosecutions and the destruction of the lives of many individuals.

All that is required under section 810 is for 'any person who fears .........that another person will cause personal injury to them, their spouse, common-law partner or child, or damage his or her property' providing that that fear is based on 'reasonable grounds', to initiate a criminal court case designed to impose a prior restraint against someone who has not committed an offence.

The wording and historical context of this section makes it clear that it was designed to be used against men who are seen as potentially violent threats to their wives or who might seize their children. In this context it has been used many times, often in circumstances where it has been an ineffective, but the only, tool aimed at preventing threatened real violence.

Where there is real and reliable proof of prior violence directed against the complainant, or similar proof of actual threats of harm made to the complainant, section 810 has its place.

A study of the case law relating to the cases in which it has been used will reveal that often the courts have only imposed it where there has been evidence of prior violence aimed at a specific person or of threats of violence against a specific person.

It was never intended as a general catch-all to be invoked by persons who have generalised fears of violence never actually directed at themselves. Such fears are usually held by persons suffering from paranoid delusions.

Even in the limited context of matrimonial violence, it has too often been the case that wives, seeking to paint their husbands as evil, violent men for the purpose of depriving them of access to their children, have lied or exaggerated the facts to accomplish their purposes by obtaining a restraining order under section 810. That, unfortunately, is all too common a behaviour.

But it does illustrate that this is the kind of law that lends itself to extreme subjectivity and self-servingness. And it works against the unfortunate who get caught in its snare.

What sort of protections are there in the law against abuse of this section? Fewer than would be available in the ordinary criminal case. For instance, a judge does not have to be convinced beyond a reasonable doubt that reasonable grounds for the alleged fears exist [this is the criminal law burden of proof against an accused]. All he must be is 'satisfied' by the evidence that the complaining person has reasonable grounds for his fears. In practise, this can mean as little evidence as "He has beat me before and I fear him now".

In ordinary criminal cases, a court may not consider or hear evidence of an accused's disposition for violence when considering the issue of guilt or innocence. Yet, in section 810 cases, this long-standing common-law protection does not apply to an accused because, after all, he is not being technically charged with an offence when a S.810 proceeding is being dealt with.

Despite the laxity of the rules of evidence adopted by this section, should the accused person refuse to sign a recognizance as ordered, accepting the restraint, or to fail to obey the restraint order, he can be imprisoned for up to 12 months.

In a nice use of legal sophistry [use of an invalid, but seemingly sound argument or proposition] the courts have held that section 810 does not amount to the charging of an offence [presumably they reason that the power to put someone in prison is based on that person's refusal to accept the restraining order or their disobediance of an order, which is similar to the way in which civil injunctions work].

Neverhtheless, it is the criminal courts that are being resorted to and the Criminal Code that contains S.810, and the result of a refusal to sign the required undertaking or obey the order is imprisonment.

Having determined that section 810 does not create an offence, then it follows that the ordinary rules of evidence do not need to apply to the making of an order.

But it is a criminal offence to disobey a lawful court order. Section 810 clearly says that the judge can commit the accused to prison. The only and direct result of a refusal by an accused to accept the restraint is imprisonment. If it walks like a duck and quacks like a duck .......!

The penalty of imprisonment for up to 12 months is more draconian than the result of most convictions for serious crimes, where the penalty can vary from a recording of no conviction, suspended sentence or fine, to a short sentence or a sentence reduced by remission rules, etc., with, for example, persons convicted of assault causing bodily harm getting out of prison after serving less time in custody than a person who refuses to sign a recognizance and to accept a restraining order.

In the Homolka case, I don't see how any specific person can truly and honestly claim to 'fear on reasonable grounds that' [Homolka] 'will cause personal injury' to them. Was evidence heard at the hearing that Homolka made any threats against anyone? I am not aware of any. Since she has been in jail for 12 years, there can be no evidence that, except in respect of the charge(s) for which she was convicted, she harmed any member of the public.

In this regard she is in the same position as any other criminal who has been convicted of an offence involving violent acts. Should they all be hounded after serving their times in jail? If, in Homolka's case, public fears [in general, notoriously unreasonable and often whipped up by journalistic sensationalism] and public hatred or disgust by themselves amount to 'reasonable grounds', then every violent criminal who has been released after serving his full sentence should be subjected to a restraining order hearing. This was not the intent of section 810 when it was created.

There will be some who will argue that evidence was given that she was 'unreprentant' and likely to 're-offend'. I take guesses about her future behaviour based on such evidence with a giant bucket of salt.

It is all supposition and guess-work of the crudest kind. Without commenting on any actual psychiatrists or social workers who may have given evidence in the Homolka case, and I have not read or heard any such testimony, it is well known in the legal profession and by criminal court judges that many psychiatrists and social workers identify with the side that calls them to testify and that their testimonies often coincide with the theory of the case advanced by the side that called them to testify. That is why I have heard experienced judges say, in private, that they often do not rely on psychiatric evidence. Witness the validity of social workers' evidence given in several recent notorious sex-abuse cases in Saskatchewan where people were wrongly charged or convicted on such evidence, in one case later refuted by the very children [now adults] who were alleged to have been victims.

Why does this matter? Surely Homolka deserves whatever she gets, some will argue. However, real justice demands fairness and an absence of arbitrariness. The lack of these characteristics is one of the things we detest about the way laws are made and enforced in other, less-democratic or non-democratic countries. To accept instances of non-democratic laws and law enforcement is to abdicate our rights in favour of the arbitrary power of the state, or to the fears and prejudices of the mob, or to both. This is one of those instances.

Will the witch hunts ever go away? I guess not. The price of freedom is constant vigilance.