A Whitehorse man who won a self-represented appeal to overturn his own assault conviction in May says he’s endured two years of abuse at the hands of the Yukon justice system, and he wants his name cleared.
In June of last year, John Kaswandik, 55, was convicted of assaulting and threatening his then-wife, Leet Mueller. Mueller said that at some point in the fall of 2009 or spring of 2010 Kaswandik grabbed her, threw her onto a bed, placed his knee on her chest and grabbed her throat for 10 to 15 seconds. Kaswandik was given a one-year conditional sentence.
Kaswandik denies those accusations. He said there was a physical confrontation in the fall of 2009, but it didn’t happen the way Mueller alleges it did.
“My wife attacked me in our bedroom. I got out of there, cause she was going crazy. I went across the hall to an empty room. A few minutes later she came in and started threatening me. She charged at me, and I merely wrestled her to the mattress,” he said.
Kaswandik said there were half a dozen incidents where Mueller had been violent in the past, but he simply didn’t respond. He also didn’t report any of them.
The two met in California and were married in Alaska in 2008. They have a four-year-old daughter.
At the trial, the Crown prosecutors called an RCMP officer onto the witness stand who gave evidence that Kaswandik had a history of violence, which Kaswandik said was not true.
Kaswandik said he couldn’t afford a lawyer and legal aid tried to “bully” him into admitting to something he didn’t do in the Yukon’s non-criminal Domestic Violence Treatment Option system instead of going to trial. The DTVO agreement would have included a peace bond but no criminal responsibility on Kaswandik’s part.
He refused, dismissed his lawyer and fought a self-represented appeal of the conviction, arguing successfully that the RCMP officer’s testimony should not have been admitted.
This past May he won that appeal and he will get a new jury trial tentatively scheduled for some time this fall. He said that because he is an American citizen, the Yukon justice system didn’t treat him fairly.
“The entire trial was a black comedy. Basically it was a he-said-she-said. I was arrested and presumed guilty just on what my ex-wife had said and no evidence of any sort. Normally, charges would not even be brought. Because I’m American, they were,” he said.
“If I ever leave Canada, even to go to Skagway I won’t be allowed back in, which means she’ll have permanently isolated me from my daughter,” he said.
On top of the problems with his trial, Kaswandik said that it took 14 months to come to trial in the first place, and that he was on probation the whole time.
“There is no point in a new trial. I’ve already served a severe sentence relative to the offences of which I have been charged,”
He is applying to have the charges stayed.
“The justice system is certainly biased against immigrants and men, no doubt about it. If I was either a Canadian or a woman, this wouldn’t be happening to me,” he said.
Yukon’s legal aid director Nils Clarke said that assertion is laughable, and that his department did everything it could to make sure Kaswandik was treated fairly, including pursuing the DVTO resolution that would have been the best outcome for all parties.
“We’re confident that he received more than what a person of modest means would have received were they to fund their services themselves,” Clarke said.
That claim also doesn’t stack up against the prevailing body of research.
While not commenting on Kaswandik’s case, Dr. Linda Coates, a domestic violence researcher, says that the vast majority of cases, the system is biased against the victims of domestic violence, not the accused perpetrators.
“First of all, men perpetrate the vast majority of violence. Almost 100 per cent of the perpetrators are men and the vast majority of complainants are women,” Coates said.
Coates said that domestic violence is often misrepresented in court on both sides, because of the language used to discuss it, but that it is almost always worse for the victim, not the accused.
Defendants often say that violent incidents happened during a fight, or that the victim somehow incited it. That has the effect of mutualizing the violence, Coates said, when in reality almost all violent encounters are unilateral, carried out by one person against another.
Leet Mueller said through her lawyer that she cannot comment publicly on the case because it is still before the courts.
Clarification: Since we originally published this article, domestic violence researcher Linda Coates has clarified that her comments about the high percentage of male perpetrators were made in reference to her own research, not the broader justice system as a whole. The cases Coates studied were randomly selected, and all had male perpetrators.
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