Victims of Violence in Relationships (4:VI)
|This information applies to British Columbia, Canada. Last reviewed for legal accuracy by the Law Students' Legal Advice Program on July 8, 2022.|
A. BC Government Policy
The BC Government has developed a policy for police, Crown, corrections, child welfare workers and other service providers who deal with people experiencing violence in relationships. This is the Violence Against Women in Relationships Policy (see Section II.2). The Policy can be accessed online here.
1. Arrest and Charge
It is police policy that calls relating to violence within a relationship/domestic violence are to be given priority for assessment and response. This includes all reported breaches of No Contact Orders, Peace Bonds, or civil protection orders. This is to ensure the safety of victims who may be at risk.
It is also police policy that if the officer has grounds to believe that an offence has occurred, especially if there is a possibility that the offence may reoccur, the officer is to arrest the alleged offender. If the alleged offender left the scene the police will make immediate efforts to locate and arrest the suspect where grounds exist. They will also complete a Report to Crown Counsel with a request for an arrest warrant.
Police will assess the risk of violence the alleged offender presents and determine whether to release the alleged offender immediately, under conditions, or to hold the alleged offender in custody in order to have a bail hearing. At a minimum, some conditions are usually imposed on the alleged offender.
If the alleged offender is arrested and subsequently released from custody, the police will normally make every effort to notify the victim and explain any conditions prior to the accused’s release.
Where there is evidence that an offence occurred, the police will submit a Report to Crown Counsel recommending a charge even if no injury has occurred and regardless of the victim’s desire or unwillingness to testify. It is the responsibility of Crown Counsel and the police to pursue criminal charges, not the victims. Victims do not need to provide a written statement, however, the police may encourage the victim to do so.
Police should also refer all victims to victim services and arrange safe transportation to transition homes or safe shelters. In power-based crimes, such as sexual assault, police will refer victims to a community-based victim services worker or program, rather than a police-based victim services program, if the program exists in the community. Not all communities in British Columbia have a community-based victim service program. Please see the Victim Services Directory referred to in this chapter for a list of programs in British Columbia.
2. Requirements of Offender Diversion
The court is aware that the accused may exert influence upon the victim that affects the court process. For example, charges will not to be stayed before trial where there are threats that may affect the victim’s willingness to testify, there is a history of violence, or where the victim refused to meet with Crown Counsel, making it impossible to assess the situation.
Similarly, diversion from the criminal justice system (known as alternative measures) in cases of violence in relationships is generally considered inappropriate. In exceptional circumstances, diversion may be considered, but only if there is no significant physical injury, there is no history of spousal violence, and there is no reason to conclude that there is a significant risk of further offences. The Crown’s policy is that use of alternative measures must not be inconsistent with the protection of society.
B. Court Orders
There are various orders available to protect a victim of violence in a relationship. Guides on both peace bonds and protection orders in English, French, Punjabi, and Chinese can be found here.
1. Criminal Court Order
A peace bond, which is available under s 810 of the Criminal Code, is an order made by a judge that requires the defendant to keep the peace. This is a limited remedy that protects a victim for a period of up to 12 months. A victim seeking a peace bond should go to the Justice of the Peace at the Provincial Court Office with the police report (or at least, the report number) and lay an Information. The victim can go without a police report, but the Justice of the Peace will most likely ask for one. The victim does not need to show that they have been injured, only that they have a reasonable fear of injury to themselves or damage to their property at the hands of the defendant. This reasonable fear should be present or ongoing. Previous threats or assaults should be brought up.
A victim should be advised to ask for a no-contact order as a condition of the peace bond. A no-contact order can be varied to be permissible contact, such that a defendant and a victim can have contact up until the victim withdraws consent. Contact in this context means both direct and indirect communication, such as phone calls, emails, messages, and visits to the victim’s workplace. The Justice of the Peace should also be informed if the defendant possesses or has access to firearms. Note that the police, and anyone else concerned, may also apply for a peace bond. Consult this for more information on no-contact orders.
If the Information is accepted, a hearing date is set, usually about two weeks later. The victim will most likely be subpoenaed as a witness for the Crown. Victims should be aware that failure to appear is an offence. If the victim does not want to proceed with the Peace Bond and Crown Counsel does, the victim may have to show up to explain their decision to the judge.
A breach of the Peace Bond is a punishable crime, with a maximum penalty of $5 000 and/or six months in jail on summary conviction, or incarceration for up to four years on indictment. The actual Peace Bond, however, is not considered a criminal charge.
2. Civil or Family Court Orders
A number of orders are available pursuant to the Family Law Act, SBC 2011, c 25 [FLA]. A victim or their representative can bring an application in Provincial (Family) Court or in the British Columbia Supreme Court. Orders involving property such as exclusive use of the family home can only be obtained in Supreme Court. However, in cases where there are urgent safety concerns, you should contact the police before pursuing the matter in Family Court as the police will respond immediately, and the family court process takes time.
a) Protection Orders (FLA Part 9)
A protection order limits contact and communication between family members where there is a safety risk. It is designed to protect “at-risk family members,” defined as people whose safety and security is or is likely at risk from family violence carried out by a family member. An application for a protection order may be made by a person claiming to be an at-risk family member, by a person on behalf of an at-risk family member, or on the court’s own initiative. A protection order may restrain a family member from contacting or communicating with an at-risk family member and from attending at or entering a place regularly attended by the at-risk family member (FLA, s 183). An application for a protection order may be made without notice, but in such applications, the court still has the option to set aside the order or change it in some respect on application by the party against whom the order is made (FLA, s 186). Unless otherwise stated, a protection order expires one year after the date it is made. Breach of a protection order under the FLA is a criminal offence.
b) Temporary Orders Respecting Family Residence (FLA s 90)
This order is only available from the BC Supreme Court. It gives the victim the legal right to occupy the home exclusive of the other party, or to possess and use specified personal property stored at the family residence, including to the exclusion of the other party. The victim and the other party must be spouses, meaning they must be married or have been living in a marriage-like relationship and have done so for a continuous period of at least two years, or have a child together. This order lasts as long as they both have a legal right to be on the property. A court does not have jurisdiction to grant this order where the family home is situated on an Indian reserve.
C. A Note on Services That May Be Harmful to Victims' Interests
Not all services that claim to be helpful or protective of victims’ interests really are. For instance, some advocacy organizations have noted that some services are not healthy for women experiencing violence. Marriage counselling, couples’ therapy, and mediation promote reconciliation but may not address underlying issues such as power imbalance and disrespect towards women. Some programs for offenders may not challenge the man’s beliefs and attitudes towards women.
However, it must also be noted that an abuser may be any gender and that the victim may also be any gender. Victims and their advocates should always make sure that the resources and services that they are considering will be beneficial to victims’ interests.
An individual who is a victim of violence should also be advised that with regard to Compulsory Family Mediation, they can apply to not participate. The victim should be advised to consult a lawyer.
|© Copyright 2021, The Greater Vancouver Law Students' Legal Advice Society.|