Family Violence and the Criminal Code

From Clicklaw Wikibooks


The Criminal Code

The Criminal Code is the main federal legislation on criminal law. The Criminal Code does not specifically address family violence, but there are a number of possible criminal offences that could apply where there has been family violence, including:

  • common assault,
  • assault causing bodily harm,
  • aggravated assault,
  • sexual assault,
  • attempted murder,
  • stalking (criminal harassment),
  • making threats (uttering threats),
  • keeping someone against their will (unlawful confinement), and
  • kidnapping.

In order for any of these charges to be laid, a complaint must be made to the police. Normally, this takes the form of an emergency 911 call. The police will come to your home and interview you and anyone else who witnessed the event.

After the police have conducted their investigation, the lead officer prepares a document called a Report to Crown Counsel and sends it to crown counsel (the lawyer for the government). Among other things, the Report to Crown Counsel describes witnesses' statements and recommends if charges should be laid. Crown counsel then decides whether there is enough evidence to lay charges. If they think there is enough evidence, crown counsel will approve the charges and the matter will be set for a hearing before a judge.

Information for abused persons

If you have suffered family violence, call the police. Nothing will happen until you do. If there is evidence of abuse, the police can arrest your partner and may take them into custody. To find out more about what the police can do, you may wish to read Getting Help from the Police or RCMP and Surviving Relationship Violence and Abuse. If your partner is taken into custody, they will stay there until a judge is able to speak to them. Most of the time, your partner will be released from custody until the trial date following the brief hearing, and the release will be on specific terms and conditions set out in a document called a recognizance or an undertaking.

It's important that you call the police right away, or at least fairly soon after the violence. The police will sometimes refuse to take action against your partner on the ground that the complaint was made out of malice or a desire for revenge because of the breakdown of the relationship.

You should tell the police — and perhaps crown counsel — about all of your concerns with your partner, whether they're about yourself or your children. You should also tell the police about past incidents of family violence, and whether your partner has ever been arrested for similar problems in the past. If your partner is taken into custody, you will want your concerns addressed in the recognizance on which your partner will be released. Among other things, the court can require that your partner:

  • not go to your home, school or workplace,
  • not go to your children's school or daycare,
  • not come within a certain distance of your home,
  • not contact you or the children, directly or indirectly, and
  • fulfill any other condition that may be necessary for the safety of you and your children.

Finally, ask that the police and crown counsel keep you up to speed on the progress of the criminal case; you should also ask for a copy of your statement and the recognizance that your partner is released on.

Breaching the recognizance

If your partner doesn't follow the terms of their recognizance or undertaking, call the police. They won't be aware that there's a further problem unless you let them know.

Call VictimLink

Sometimes calling the police isn't enough and you may need counselling to help you cope with the violence. In particularly bad situations you may need a safe place to stay with your children until the criminal proceeding can be dealt with.

Call VictimLink BC at 1-800-563-0808 for assistance. VictimLink BC is a province-wide telephone help line for victims of family violence, and all other crimes. At VictimLink BC a support worker can provide information and referrals to help you deal with the effects of family violence, and arrange for crisis support counselling. VictimLink BC is available free to people across BC and Yukon 24 hours a day, seven days a week.

You may feel that you need to leave the family home, or you may want to develop a safety plan in case your partner becomes violent again. A victim support worker can help you develop a safety plan or find a place to stay. Again, call VictimLink BC and ask to speak with a victim support worker.

Getting back together

You must speak to crown counsel if you want to get back together with your partner, or if you want to contact them, or stop the criminal process. You cannot change the terms of your partner's recognizance or drop the charges yourself. Only crown counsel can do that. If you contact your partner, you could be making matters worse since you'll be inviting them to break the terms of the recognizance, which might result in further criminal charges against your spouse.

Information for accused persons

It is the policy of the provincial Ministry of Justice that incidents of spousal assault are to be treated as significant crimes. As a result, if your partner accuses you of assault, you may be arrested and you could be taken to jail overnight.

If this happens, you will appear before a justice of the peace or a judge for a bail hearing. If you are arrested on a Friday, this may mean that you'll spend the weekend in custody, although provincial court judges are usually available by telephone or video link. At the bail hearing, the judge will normally require that you promise to follow certain conditions if you want to be released from custody. If you do not agree to abide by the terms the judge wants, you will not be released and you'll stay in jail until the hearing of the charges against you.

Typically, bail conditions include:

  • not to have contact with your spouse, either directly or indirectly,
  • not to go to your spouse's home, school or workplace, and
  • to keep the peace and be of good behaviour.

Other conditions might include restrictions on your use of alcohol and drugs, a curfew, a requirement that you report to a parole officer or the police, a requirement that you not go within a certain number of blocks of the complainant's home, a requirement that you not possess firearms or other weapons, and so forth.

The judge's conditions will be written down in a document called a recognizance or an undertaking. It is critical that you follow the terms set out in your recognizance. If you don't, you can be arrested for breaching them, and face a criminal trial on that charge as well. The terms of your recognizance will remain in effect until the trial or until they are changed at a hearing before trial.

Lawyers and your bail hearing

You have a right to contact a lawyer when you are arrested. Most importantly, you have a right to have a lawyer represent you at your bail hearing. Call one. If family law proceedings have already started in civil court, make sure that the lawyer is aware of the fact, especially if you have children.

Whether you're able to get a lawyer or not, make sure you speak to duty counsel before your bail hearing. Duty counsel are lawyers paid by the Legal Services Society (legal aid) to give advice and limited help to people who have been arrested and do not have legal representation. Usually, duty counsel will try to speak to everyone who has been arrested before the bail hearing. However, if the number of people stuck in cells is high, you may not have that much time with them.

You will doubtless want to ensure that the terms of your recognizance are fair, not too restrictive, and don't interfere with your ability to see your children or go to work.

Under certain circumstances, you may not be released from custody, regardless of the conditions you're prepared to agree to. This will depend on things such as the gravity of the alleged offence, any history of related criminal convictions, and the opinion of the crown as to the circumstances of the offence.

Getting back together

Often a couple will want to get back together or even just want to talk about things after an arrest has been made. Sometimes the complainant will want to drop the charges. A couple of points need to be mentioned:

  • Dropping the charges: Criminal charges are laid by crown counsel, not by the complainant. The complainant cannot drop the charges. Only the crown can do that.
  • Communication with your spouse: Do not talk to the complainant, even if they contacts you, if your recognizance does not allow you to communicate with them. No matter who initiates the contact, communicating with the complainant is still a breach of the terms of your recognizance and you may face criminal charges from that breach, as well as the other charges.
  • Reconciliation: If the complainant truly wishes to get back together with you, they must talk to crown counsel and ask that the terms of your recognizance be changed to allow you to communicate with each other or share the same residence. There must be a hearing to vary the terms of the recognizance before those terms will be officially changed.

The consequences of criminal charges

Among other things, criminal charges relating to family violence can lead to:

  • a stay of proceedings, when the crown doesn't take the charges to trial and no criminal conviction is entered,
  • a discharge following trial or a guilty plea (a discharge can be absolute or come with certain conditions, like a probation period, and depending on the type of discharge, there may or may not be a conviction and a criminal record),
  • a suspended sentence, with conditions, a period of probation and a criminal conviction,
  • a peace bond under s. 810 of the Criminal Code, under which the accused will be required to comply with certain conditions, but which is not a criminal conviction and won't give the accused a criminal record, or
  • a conviction punished by a fine, jail time, or both a fine and time in jail.

The most common results of family violence charges are a suspended sentence with probation or a short period of time in jail. Of course, the consequences of a guilty verdict will depend on the circumstances of the offence and any past record of conduct related to the offence.

Resources and Links

Legislation

Links


This information applies to British Columbia, Canada. Last reviewed for legal accuracy by Gayle Raphanel and Samantha Simpson, August 5, 2017.


Creativecommonssmall.png JP Boyd on Family Law © John-Paul Boyd and Courthouse Libraries BC is licensed under a Creative Commons Attribution-NonCommercial-ShareAlike 2.5 Canada Licence.
Personal tools
Namespaces

Variants
Actions
Site
Tools
Contributors
Print/export