Should witnesses evading service of a subpoena be jailed?

The law in Canada is quite clear. If you are required to attend a trial as a material witness and you are taking steps to avoid being subpoenaed as a witness, the police can apply to a justice of the peace to issue a warrant for your arrest and committal to a jail closest as to where the trial is to be held and kept in the jail until your presence as a witness is required.

That is what happened recently to a 19-year-old pregnant woman who made it very clear that she was not going to appear in court as a witness against her boyfriend who allegedly assaulted her according to her statement to the police. Mowatt, who said that she regretted her decision to call police almost immediately after doing so, purposely evaded authorities for more than a month. She used aliases to move between shelters and was defiant in several telephone conversations with police, telling officers that she wasn't going to pick up a summons to court or show up at trial.

As a result of her evasions, the police were having a hard time getting her to agree to be a witness against her boyfriend. To make serving her difficult for the police, she moved about Toronto to different women’s shelters under different names. She told the police who were trying to convince her to be available so that they could serve her with the subpoena, “Whatever you do, I won't come to court.” When Mowatt missed her court date in January – for allegedly stealing clothes from Designer Depot last year – the judge issued a bench warrant. The bench warrant gave police the authority to arrest the teen and the leverage to persuade her to pick up a summons to court and testify at trial. She was taken into custody on April 1st. After having received Mowatt’s statement to the police that they can do what they want, they did what they wanted to do by hunting for her, locating her, arresting her and taking her to jail.” That’s when the soft-headed do-gooders began to wail in unison.

Vivien Green, former director of Woman Abuse Council of Toronto for 16 years, one of the wailers, said it is a reality of domestic assault cases that women sometimes recant or do not want to testify. She said that judges need to rely more on persuasive, hard evidence rather than victim testimony, and to become better educated in how to deal with such sensitive cases. She added, "The system is a mess if it's only relying on victims. We need judicial education. We need the system to grapple with the fact women aren't going to want to testify."My response to that drivel is, “Give me a break!”

Let me take you back to the so-called victim’s complaint. Harbin, met Mowatt at the corner of Yonge and Bloor Streets in Toronto when he asked her for directions to the bus terminal. Soon after she began living with 19-year-old Harbin. Nine months later on December 20th 2007, she phoned the police and told them that her boyfriend had assaulted her. As a result of her complaint, he was arrested and is facing eight charges, including assault with a weapon, forcible confinement and three counts of breaching probation. Needless to say, he was confined in jail while waiting for his trial. Mowatt later said that she's depressed about being ‘punished’ with detention for calling police about her boyfriend. That’s utter nonsense. She was incarcerated because she refused to go to court to face the charge of shoplifting and for evading the service of the subpoena.

She told the news media that she was expecting her baby within days. It turns out that was a lie. The baby isn’t due for at least a month. She also lied to the Welfare authorities when she gave them a phony address she said she was living at when she applied for welfare. One is forced to wonder if she was lying when she told the police that her boyfriend assaulted her. Consider what she is saying now.

The 19 year old, a recent immigrant from Jamaica who is eight months pregnant with the child of her alleged abuser, was freed on bail April 12th after spending an uncomfortable day on the witness stand, where she contradicted many of the statements she made to police on Dec. 28 after she called 911 to complain that her boyfriend was beating her.

When Mowatt was testifying at the trial of her boyfriend on April 11th and shown pictures of herself, bruised and beaten, and asked how her injuries occurred, Mowatt put her head down. She said marks on her arms were bug bites, bruises on her face happened when she bashed into a wall and slept on a "hard object," a welt on her arm was the result of falling onto the carpet and a gash on her toe came from stubbing it on a door. This conflicts with her original call to the police. According to the police, at the time when Mowatt called them, she was upset and in genuine fear for her safety and the safety of her baby. If her testimony in court is true, that is that her boyfriend didn’t assault her, then why did she phone the police and tell them that she was in fear of her boyfriend and that he assaulted her? This isn’t the first time that victims of spousal abuse have lied about what really happened. Years ago, one woman in Toronto told the court that she fell on a broom and hurt herself.

Obviously, Mowatt wants her boyfriend set free and the following statement of hers bears this out. She said to a reporter who had earlier visited her. “I hope they acquit him. We're going to build a life together. I love him and he loves me. To me, he's my only family.”

Let me give you some examples of men who were acquitted because their accusers recanted their accusations and after their trials, their abusers later abused their spouses and/or girlfriends again.

James Berry, 37, was accused of anal raping his girlfriend and slamming her head against a steering wheel and almost severed her ear. She recanted her accusation against him and he was set free. Later, he punched her in the face. Again she recanted her statement and again he was set free.

George Arseneau, 47, was accused of punching his common-law wife. She recanted her accusation. He was acquitted. He later stabbed her in her abdomen. He got 30 days in jail.

Michael Kerr, 38, threatened to bash in the head of his common-law wife. She recanted and he was acquitted, Later he slammed her into the door and as a result, broke the door.

Brian Ceballo, 25, kicked the legs of her common-law wife. She recanted her accusation. He was acquitted and later he choked and kicked her again and told her that he had the right to kill her.

This current case has caused a stir among politicians and women's advocates, who are grappling with how and why an alleged victim of domestic violence was detained in prison and the future implications of such drastic measures.

Richard Posner, Harbin's defence lawyer, called Mowatt's incarceration incomprehensible and an example of how, on occasion, the "justice system loses sight of the forest for the trees." He said "A guy is facing a charge of domestic assault and a woman is recanting and she winds up in jail. Whether he's a bad guy or not, it's bizarre."

Why is it bizarre? She wasn’t put in jail because she was willing to recant her version of what really happened between she and her boyfriend. She was incarcerated because she didn’t appear in court at her shoplifting trial and because she stated that she didn’t want to testify against her boyfriend. That is not her decision to make. Once a person files a complaint against another person, the complainant is required by law to testify in court as to why the complaint was made in the first place.

Criminal lawyer Alan Young said despite Mowatt's alleged refusal to appear in court, the warrants issued for her arrest and a shoplifting charge, he can't explain why she's still in custody. He said that the bench warrant is discretionary; explaining that police don't have to make an arrest – and that shoplifting is such a minor offence, it would be shocking if that's why she was denied bail. The reason why she was denied bail was because the Justice of the Peace had no confidence Mowatt would attend court as a witness against Christopher Harbin and I hardly think the JP would grant her bail when she broke her promise to attend her shoplifting trial.

Mowatt's defence lawyer, Lydia Riva, argued against the teen's incarceration at the bail hearing. Riva said she suggested strict bail conditions be imposed on the expectant mom, including house arrest.

His observations and her argument don’t make any sense. Mowatt was arrested by the police and kept in custody because she couldn’t be trusted to attend the trial of her boyfriend and her shoplifting trial. It is as simple as that. House arrest simply means that she promises to remain in her house until the trial. Can a witness who tells the police that she won’t attend a trial and takes steps to avoid being served a subpoena be trusted to remain in the house while waiting for the trial to begin and then, on her own volition, show up for her boyfriend's trial?

Mr. Young then said that the police usually record video statements from victims like Mowatt, so that vulnerable people, known to recant or refuse to testify, don't have to face their alleged attacker in person. If there is such a video it would be unusual for the Crown to detain Mowatt, just for her testimony.

That comment also doesn’t make any sense for the following reason. When a person is on trial for a criminal offence, he has the right to face his accuser and cross examine his accuser as to the truth of the accusation. If the accuser isn’t in attendance at the trial to be cross examined, then the accused is denied a fair trial. Admittedly, there are exceptions to this rule such as the witness having died before the trial. Young did concede however that video statements aren't accepted as evidence "100 per cent of the time.

Richard Posner, Harbin's defence lawyer made a real ridiculous statement when he said that to detain a witness who wants to make amends with the man she's accused of assaulting her indicates serious holes in the Crown's case.

Once Mowett is on the witness stand, the Crown can ask the judge for permission to treat his witness as a hostile witness which means that he can then cross examine his own witness. The fact that she wants to make amends with her boyfriend has no bearings whatsoever on the crown’s case because the judge won’t concern himself as to what her relationship with her boyfriend is during the trial but rather he will concern himself as to what happened between them in December of last year that prompted her to call the police.

Posner was right about one thing when he said that the Crown has an extremely significant problem of proof. Whenever the Crown is faced with an uncooperative witness, there is always a problem of deciding who is telling the truth.

When the trial is finished, the issue of what is to be done with her baby after it is born is an interesting one to ponder. I will let my readers form their own opinion as to whether or not it is in the best interest of the baby to let Mowatt keep the baby. But here are some factors to keep in mind.

First, Mowett told the police, (according to Detective-Constable Mandy Morris ) that she vowed to have her baby in an elevator or a stairwell rather than testify at her alleged abuser's trial. Since it wouldn’t cost her a penny to have her baby delivered in a hospital, why should society believe that she really cares about the welfare of her baby? Was this statement of hers mere posturing or did she really mean it?

Second, if her boyfriend really did assault her, will the authorities let her keep the baby when she is living with a man who may be capable of harming her again and also the baby too? If you think that is unlikely, consider the case of Allan Dwayne Schoenborn, a 40-year-old Vancouver man who was ordered to stay away from his wife and his three children but she recently let him visit the children while she went out shopping. When she returned home, she discovered to her horror that her three children were murdered and their father was gone from the scene.

If the boyfriend is convicted, he may very well be placed on probation and one of the conditions of his probation may be that he is to stay away from Mowatt. I think that this would be a proper condition.

When batterers are convicted, judges often insist that as a condition of probation, the batterer should attend counseling to help control their anger. But only five out of 33 men in 1996 in Toronto ordered to undergo this treatment actually completed it. That was because there were long lineups and few openings available to them. Even today, that is still a problem. That same year, 35 of 133 arrested for battering their spouses continued to beat their spouses.

In summary, let me say that as I see it, putting Mowatt in custody for evading service of a subpoena was the correct thing to do. Further, if the court concludes that she lied in court when she gives her testimony, she should be charged with perjury. And finally, I think that both she and her boyfriend are dingbats and if she continues to live with him, then in my opinion, their baby’s wellbeing is at risk and should be apprehended by the authorities and turned over to the Childrens Aid so that it can be adopted and placed into the care of a loving couple.