Upon Arrest
When the police arrest someone for a domestic assault, they can either decide to release you or decide to keep you in their custody.
If they decide to release you, that means that you are granted “bail” through what is called a “Promise to Appear” (with your court date) and an “Undertaking to an Officer in Charge” under section 499 of the Criminal Code. The Undertaking is especially important, as it is a list of conditions you need to follow. If you do not,
- You can be criminally charged with a Fail to Comply with Undertaking (or “breach”), under section 145 of the Criminal Code; and
- After being criminally charged, the police get a second chance to review whether you can be released on another Promise to Appear, or detained pending a bail application.
One of the most common issues with domestic violence charges is the “No Contact Order” or “NCO“, where you are to have no contact with the complainant in the assault charge. When the police (or justice) place you on this order, this means absolutely no contact. If you are contacted by the complainant — and even if the complainant truly wants contact — as long as the order is in place, it is a crime to reciprocate that contact. Furthemore, there is usually a “non-attendance condition”, meaning it is a crime to attend to the complainant’s residence. In domestic situations where there is a shared residence, like a family home, this can be especially difficult.
If the complainant wants contact, or if the no contact condition of the undertaking presents logistical difficulties (for example, in family, divorce, or custody proceedings), it is possible to modify the order under section 499(3) or section 503(2.2). To do so requires an application before a justice, or a Crown attorney can consent to vary by paperwork.
The police may also decide not to release you if certain conditions apply. For that you will need to make a bail application, either with Crown consent or an opposed release in front of a justice. Normally the Crown is required to prove why you should be detained in custody. However, at the time of this blog post, Parliament is seeking to introduce Bill C-75, which means that accused persons charged with domestic assaults will have to instead persuade the justice that they should be released (the “reverse onus”). Right now, this will only apply to accused individuals who have at least one entry of domestic violence on their criminal record.
After Release
If you are released from police custody, you are given a court date. You need to attend your court date (unless you get a lawyer, and that lawyer advises otherwise) and your fingerprint date if the police give you one. Missing either one means that you could be criminally charged and re-arrested. On those court dates, you will have a chance to obtain and review the police particulars and witness statements (“disclosure”). Looking at the disclosure is necessary to proceeding with the charges.
After your release is the time to decide whether or not you wish to either plead guilty or set the matter down for trial.
If you decide you wish to take the matter to a trial, you should be aware of various evidentiary issues, including the rule of Browne and Dunn. Furthermore, it may be that the Crown even asks for a lawyer to be appointed to your case so you are not able to cross-examine the complainant personally. Depending on how the Crown proceeds on your case — summarily or by indictment — you may have the choice in proceeding to trial with a Provincial Court Judge, with a Queen’s Bench Judge, or with a Queen’s Bench Judge and Jury.
If you decide you wish to plead guilty to a domestic assault, it is an “aggravating factor” under section 718.2(ii). This means that the sentence is likely to be more punitive than if the assault was a “regular” assault, all other things being equal. Furthemore, unless the victim of the assault informs the court that they wish to have contact with the offender, the Court can place the offender on further no-contact with the victim as part of a probation order, under section 732.1(2)(a.1). Sentences can range from discharges (no criminal record) to penintentiary sentences (up to five years for an assault charge).
If you have been charged with a domestic assault, and would like to speak to a lawyer about your options, you can contact me at any time to have a free, no-obligation consultation.
Photo Credit to Scott Rodgerson.
Scott Wilson 