Domestic assaults have always been assaults.  More than a generation ago, however, unless the injuries involved were quite serious, the police would avoid intervention, prosecutors would frequently not pursue domestic violence cases and courts would treat such offenders more leniently than others.  These attitudes were long ago changed.  Domestic violence is not a private matter.  It is a public concern. Another topic discusses the definition and meaning of assault under the Criminal Code.

The Criminal Code in fact does not generally distinguish between assaults based on the relationship of the parties.  An assault is an assault regardless. With domestic assaults however, incidents are usually treated more harshly than in other cases. This will occur in a case, not because the assault itself is more aggravated, but because the single occurrence is merely only one of a number of such assaults which may have taken place over months or years. It is be to noted however that s. 718.2 of the Criminal Code says that "evidence that the offender, in committing the offence, abused the offender’s intimate partner or a member of the victim or the offender’s family" is an aggravating factor on sentencing.

Although not classified differently in the Criminal Code, in many jurisdictions, domestic assaults are separately identified and tracked. For instance, in Ontario, designated Crown attorneys are charged with prosecuting such cases and we now have even moved to assigned courts dealing exclusively with such cases.  Even the files themselves are distinguished by the use of coloured stickers.

In prosecuting these cases, domestic assaults are treated differently than situations where the parties are strangers. One dominant fact justifies the different treatment.  It is that typically or frequently the abuser, not only has physically and emotionally abused his or her partner or relation, but has also exercised a significant degree of control over the other. For this reason, police are required to lay charges when they reasonably believe an offence has been committed in a domestic situation, irrespective of the express wishes of the complainant.  This philosophy carries through in the prosecution stage and thus the ultimate decision to prosecute belongs to the Crown Attorney’s office. Unless that office determines, based on the evidence, there is not a reasonable prospect of conviction, the Crown will normally continue with the case regardless of the wishes of the complainant.  This is different from other cases where the Crown is often content to go along with the wishes of the complainant.

The different treatment however is not simply based on the assumption the complainant in a domestic matter is not able to act independently, but also on the belief that general deterrence principles require a low-tolerance approach.

What relationships are the subjects of this classification? Assaults between spouses, whether common law or married are typically classified as domestic.  Most cases involve marital relationships, but assaults on children, siblings and parents come under the classification as well.  The relationship however can be even more casual as in the case of two parties are boyfriend and girlfriend.  Still, the average case involves a husband and wife with the husband as the offender and the wife as the victim.  The Criminal Code now defines persons who may be guilty domestic violence as an intimate partner which includes a current or former spouse, common-law partner and dating partner.

What kind of charge comes under the domestic category? Charges of assault, assault with a weapon, assault causing bodily and threatening bodily harm are the typical charges in this category.  Also after a relationship has ended, one may continue to harass the other, so criminal harassment charges sometimes arise as well.

What is the process by which these charges go to court?  Police are usually called by one of the parties to a domestic assault situation.  The normal policy is for police officers to arrest the individual whom they reasonably believe has committed a criminal offence.  Evidence of this will come from statements of the parties themselves, statements from independent witnesses, if present or able to provide information, the appearance of the premises, and the apparent injuries to the complainant and that person’s emotional state.  If the only evidence is the complaint of one party, contradicted by the other, that will not be enough, but it might not be uncommon for the police to simply accept the version of the complaining party and proceed to charge the other.  Such instances are not typical, and the end result is usually that one party, most often the male, will be arrested and removed from the family residence.  Later, the arrested party will usually be released from custody. 

Whether a person gets bail or not will depend on any prior record, whether he or she has other charges outstanding and the seriousness of occurrence. For serious matters and when there are outstanding charges, the police will bring the individual before a justice of the peace to determine whether the person under arrest will get bail. A police officer however, typically a senior one, has the authority to release an individual and in doing so, may set conditions of bail.  A detained person does not have to accept such conditions, but may wait and have a bail hearing before a justice of the peace.  Alternatively, he or she may accept the terms and get released, but retain the option of applying for a change of conditions to a justice of the peace before the matter is set in court.

The most common term will be for the defendant to abstain from contact with the complainant. Depending on their living arrangements, another condition may be to stay away from the other’s residence or workplace. The authority to set such conditions is specifically provided for in the Criminal Code where it refers to the power to set a condition not to contact a "witness or other person."  The reason for imposing such a condition is to prevent a repetition of the offence or another offence. One would expect however that in setting such a condition, the complainant would be consulted or there would be evidence of prior abuse. However, the normal practice is to have the non-association condition imposed at the outset in all cases. If the complainant wishes to have the condition removed, he or she--usually the female partner--must consult with an assistant Crown attorney or the accused must request a change of conditions by a court application.

Of course, while one of them has outstanding conditions, sometimes these partners get together on their own.  This only compounds problems as the accused risks being charged and convicted of another offence as well as losing bail on the original charge. After the charge is laid and the parties are separated, there may be some resolve to get back together. If this is to be done before the charge or charges go to trial, it will either be necessary to obtain the consent of the local Crown Attorney’s office or have the case before a justice of the peace or judge for a review of the outstanding conditions.  As a practical matter, the latter course, is not usually an option without the Crown’s consent.  Very frequently the Crown prosecutor will not consent to a condition change, but will offer some kind of deal on a guilty plea.  When the parties plan to get back together, a judge is not likely to impose an absolute non-association condition as part of a probation order.  While a guilty plea or finding will certainly have a restorative justice element in the process, the verdict itself is not likely to have an impact on the probability of the offender committing the same offence again. The point of having a non-association condition is to prevent a repeat of the same offence or another offence. Thus, if a prosecutor has no reason to object to removing a non-association provision after a guilty plea, why should he or she object before?  Obviously, the provision often becomes a bargaining chip and not a means for preventing further criminal offences.

What happens when the complainant wants to change their story? One of the most dramatic developments in the law of evidence has affected domestic violence prosecutions.  It is the use of video tape recordings of verbal statements given by complainants shortly after the incidents that has made the difference.  Formerly, prosecutors were faced with the common occurrence of complainants simply taking the witness stand and denying any assault. Of course, this was not always a bar to prosecution because other evidence might suffice to prove the case.  Frequently however the complainant’s testimony was the only substantial evidence against the defendant and when they gave a different version than originally given to the police, it would be the end of the case.  Of course, that witness could always be confronted with his or her former inconsistent statement, but unless the witness adopted the statement, the former statement was not substantive evidence.  The trier of fact could conclude the witness was not worthy of belief, but the former statement was still hearsay and not admissible. Courts have always found ways to get around problems created by the Hearsay Rule. This particular problem was dealt with by the Supreme Court of Canada in R. v. B. (K.G.) [1993] 1 S.C.R. 91 when it ruled that such statements in certain circumstances may be used as substantial evidence.  Police departments now videotape statements of complainants on a regular basis.  This type of development is just another example of the changes we have seen in this area. The extra resources and effort going into these cases must be translating into more convictions.

Being charged with a domestic violence offence can have serious consequences, not only to the individual’s family life, but to their work, reputation and future.  In some cases it may be advisable to fight the charges, but even if the defendant does not obtain an outright acquittal or if they plead guilty, it is not the end of the world.  It is possible to obtain an outcome mitigating against the worst scenarios that could otherwise arise.  Having an experience counsel will help.