Name of ‘domestic violence court’ ruled constitutional after man claimed discrimination

TORONTO — A man who argued the name of Ontario’s domestic violence court caused him distress and violated his rights has had his constitutional challenge thrown out.

In a decision released Monday, the province’s top court ruled an appeal by Sean Foessl against an earlier ruling tossing the case was without merit.

“Applications like this run the risk of trivializing the important rights protected by the charter,” the Court of Appeal said in its ruling.

Foessl, of Sudbury, Ont., was acquitted in January 2015 of two counts of breaching bail terms.

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Court records show police initially charged Foessl with assaulting his son after the boy’s mother – his former domestic partner – complained. He was granted bail with a condition that he stay away from the woman’s home.

Evidence was that he did go to the house, but only after notifying police he needed to retrieve some belongings. He was charged with bail breach, and the prosecutor mistakenly assigned the case to the domestic violence court – which only deals with matters involving intimate partners – on the assumption that the victim was his former partner rather than his son.

The case was then transferred to regular criminal court, where he was acquitted.

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Foessl then challenged the court’s name on the grounds that it was discriminatory, caused him to suffer “serious state-imposed psychological harm,” and amounted to cruel and unusual treatment.

He argued he felt “intimidated, disadvantaged and stigmatized” while the case was before domestic violence court given that the alleged breach of bail did not involve or allege any violence. To back his argument, he filed an expert report from a psychologist, who said the man’s feelings about the name were consistent with the “stigmas reported by several accused and incarcerated individuals” he had treated.

In response, the Crown argued the specialized courts, part of the Ontario court of justice, were designed to respond to violence within intimate relationships, and the name was informally used throughout the system.

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Last August, Superior Court Justice Patricia Hennessy rejected his challenge.

“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,” Hennessy wrote.

“The name simply and accurately reflects the scope of the work of the court to determine allegations of domestic violence.”

The Appeal Court said Hennessy applied the correct legal tests and her conclusions were supported by the record. It also ordered him to pay $2,000 in costs.