How Can a Domestic Violence Lawyer Help?
Cory Wilson is a Calgary domestic assault lawyer, Calgary criminal lawyer, Okotoks criminal lawyer, Airdrie criminal lawyer, Canmore criminal lawyer, Strathmore criminal lawyer, Didsbury criminal lawyer, Cochrane criminal lawyer, Lethbridge criminal lawyer and Medicine Hat criminal lawyer.
What is Domestic Assault?
Assault is the intentional application of force to another person without their consent. Domestic assault is no different than an assault generally, except it happens in the context of a domestic relationship. Although not classified differently in the Criminal Code, domestic assault has different implications for bail conditions and sentencing. In order to be charged with domestic assault, actual physical abuse is not required. A person can be charged with assault even if there was only a threat of assault.
A domestic relationship is wide-ranging and includes marriage, common-law or dating. With respect to domestic assault charges, a domestic relationship also applies to children, whether biological or not.
A domestic assault charge has immediate and significant consequences including bail conditions prohibiting an accused from returning to their own residence and having no contact with the complainant or their children. These conditions can remain in place even if the complainant requests that they be removed. Potential sentences if found guilty of domestic assault can result in lengthy periods of jail.
Allegations of domestic assault are treated very seriously by the police, prosecutors and courts for the following reasons:
- The prevalence of domestic abuse in our society;
- The power imbalance as it usually involves men abusing women;
- The lasting impact it can have on children living in the home; and
- The risk of the violence escalating if the abuse is not dealt with quickly and effectively.
Due to the prevalence of domestic violence, the Calgary Court Centre has a courtroom dedicated only to domestic violence offences. This courtroom also uses specialized prosecutors who focus solely on these types of offences.
Defences to Domestic Assault Charges
When a judge evaluates evidence in a domestic assault trial it will involve the assessment of the complainant’s credibility and reliability. These are distinct but related concepts referring to the complainant’s truthfulness and accuracy when testifying. There are a number of factors a judge will consider such as:
- Internal inconsistencies: where the complainant has given a previously inconsistent statement;
- External inconsistencies: the complainant’s evidence is contradicted by other evidence;
- Bias against the accused: the complainant’s motive to make false allegations;
- Demeanor: how did the complainant come across during the testimony in areas such as voice tone and body language;
- Manner of response: was the complainant argumentative and evasive or forthright;
It is important to hire an experienced criminal defence lawyer to cross-examine the complainant to exploit any inconsistencies and to show the judge that the allegations are not credible.
In addition to credibility, the defence of self-defence is often vital in a domestic assault trial. Far too often we see incidents in which the complainant attacks the accused and then calls the police when the accused acts in self-defense. Far too often, if it is the male who is acting in self-defense, the police simply arrest him without conducting a thorough investigation.
In order to rely on the self-defense provisions found in section 34 of the Criminal Code, an accused must satisfy the judge of the following criteria:
- They believe on reasonable grounds that force is being used against them or another person or that a threat of force is being made against them or another person;
- The act the constitutes the offence is committed for the purpose of defending or protecting themselves or the other person from that us or threat of force; and
- The act committed is reasonable in the circumstances.
In considering whether the act committed was reasonable, a judge will look at the non-exhaustive list of factors found in section 34(2) of the Criminal Code:
- The nature of the force or threat;
- Was the use of force imminent;
- The person’s role in the incident;
- Whether any party used or threatened to use a weapon;
- The size, age and gender of the parties involved;
- The nature, history and duration of the relationship;
- Proportionality of the force used; and
- Whether the act committed was in response the a use or threat of force that the person
Get Your Domestic Assault Charges Dropped
In Calgary, domestic assault charges are handled by specialized prosecutors who only deal with domestic violence matters. Complainants recanting or indicating an unwillingness to proceed is a very common occurrence and the Crown view such occurrences with a critical eye. In some cases, it is questionable whether or not the complainant truly wants to recant. The accused, family and/or friends may have utilized control tactics or threats to insist on the request. These are tactics that the Crown Prosecutor’s office are well aware of and as a result, rarely withdraw charges in such a situation.
People are often confused as to why the charges aren’t dropped upon a complainant’s request. The observations of the Alberta Court of Appeal are relevant to this issue and are of great assistance in understanding why charges aren’t so easily dropped. In R. v. Tkachuk, the Court noted that victims of crime do not have the authority or the responsibility to decide whether a prosecution should proceed. The Court held:
“…that responsibility can only be discharged by qualified prosecutors who have the training, judgment and courage to make the necessary decisions inherent in every prosecution. … Many times these decisions will be difficult and even unpopular, but the responsibility for making them must always rest with the Crown and not with victims of crime, or other interested parties. Abdication of this prosecutorial responsibility to others who are interested in the outcome of the case, but have little or no understanding of the complexities, or even the basic tenets of our justice system, is wrong, and represents a serious threat to the fair administration of criminal justice.”
A decision to terminate proceedings whether by withdrawing, staying, or calling no evidence is made by the Crown Prosecutor in the interest of the proper administration of justice, including whether there is a reasonable likelihood of conviction and the public’s interest in the effective enforcement of the criminal law. When deciding whether to terminate proceedings, Crown prosecutors also consider the safety of the complainant and certain public interest factors.
While the Crown is very hesitant to withdraw domestic assault charges, they are, in certain circumstances, open to withdrawing the charges if the accused enters into a Peace Bond. Depending on the severity of the allegations, an accused may enter into a Peace Bond in which they are bound by certain conditions such as counselling and abstaining from alcohol. Upon signing the Peace Bond, the criminal charges are withdrawn and the accused person is left with no criminal record. A Peace Bond is not a finding of guilt.
Cory Wilson is a criminal defence lawyer based in Calgary. If you have been charged with a criminal offence or are a suspect in a criminal investigation, call today for a free, no obligation consultation.