Domestic violence is violence which takes place within a family or an intimate relationship. Offences can include assault, threatening death or bodily harm, murder, criminal harassment, sexual assault, mischief or breach of court orders.
Targeting domestic violence cases is one of the top priorities for police and prosecutors in Ontario. The federal and provincial governments have declared domestic violence a “zero-tolerance” crime. Statistics Canada, in its comprehensive Uniform Crime Reporting Survey, found that 1 in 5 violent offences are domestic in nature, as are 1 in every 4 homicides.
As a result of a few high-profile murders and historical unfairness in the law, laws and policies have been written that make it mandatory for police and prosecutors to investigate and prosecute every allegation and 911 call of domestic abuse to the full extent of the law. These “pro-charging” and “pro-prosecution” policies are in full force and effect throughout Ontario.
The Criminal Code lists domestic violence as an “aggravating factor” for sentencing, which means that if you are found guilty of a criminal offence involving domestic violence, the penalty will be harsher. Also, the consequences of a criminal record can affect your ability to work, to travel to the United States, and your immigration status if you are not a Canadian citizen.
No matter how minor the incident- a small push, or an angry comment perceived as a threat, it will be treated as a very serious matter by police and prosecutors. As soon as a family member, intimate partner, or even a neighbour calls the police to report a domestic incident, the case will be handled differently from other criminal cases. The police will show up quickly, and they will almost always make an arrest, even when there are no injuries.
Sadly, while the police should investigate the complaint fully, they usually don’t, because they are under strict policies to lay charges as soon as someone tells them they were assaulted or threatened while in a domestic relationship. As a result of these “charge first, ask questions later”, the police make their arrest, close the file and refer it to the Crown Attorney’s office for prosecution. It will be up to you and your lawyer to sort the mess out afterwards.
The police are under strict policies to lay charges, not to negotiate, mediate or make recommendations, which they will often do in other types of criminal cases. Your views as a complainant/victim will be heard, but not necessarily agreed with by the police or prosecutors.
Unlike other criminal charges, there is a political element to domestic violence. As a result of a few tragic, high-profile incidents where someone was murdered by an angry spouse or ex-lover, police and prosecutors are afraid of releasing someone in case he turns out to be the one in a million who will then turn around and kill their spouse or girlfriend. No police officer or prosecutor wants to be held accountable for that decision, so they often pass that responsibility on to someone else, such as a presiding justice in court. In domestic assault cases, that means that you will most likely be held in jail until your bail hearing, and if released, you will be bound by strict conditions. You will need a good criminal defence lawyer to get you through that process intact.
In domestic violence cases, the police, prosecutors and judges will be seeking to have strict conditions imposed, even if you have no criminal record, because they are concerned about the safety of the complainant. In the majority of cases, you will be separated from your family and your home, often for up to a year or more. Unless you have a good lawyer.
Getting your bail conditions changed is not easy. You will need a lawyer with the skill and experience to negotiate for you. Your lawyer will need to persuade the Crown, the police and the court that you do not pose a risk to the complainant, by submitting the right kind of evidence and arguments for their consideration. At The Defence Group, managing director Arun S. Maini has worked on both sides of the domestic violence issue. As a former Crown Attorney, he prosecuted hundreds of domestic cases; as defence counsel, he defends and advises both complainants and defendants on a whole range of issues, from bail issues to recantations to trial strategy. In the highly-politicized arena of domestic violence, you need to have a lawyer on your side who is highly experienced, and well-respected by all the players in the justice system.
No. Once the police are called in, the complainant loses control over the process. And just as police follow strict policies to lay charges in domestic cases, prosecutors are under strict policies to zealously pursue convictions to the full extent of the law. If a complainant tries to get the charges dropped, she will be sent to speak with a worker at the Victim Witness Assistance Program, which is an agency affiliated with the Crown. They will discourage her from trying to have the charges dropped. If she says that she exaggerated or lied to the police, she will be told that she risks being charged with public mischief. Even if she continues to insist on having the charges dropped, the Crown will likely proceed with the prosecution anyway.
False. The Crown’s policies are based on their belief that when a complainant wants to change her story, or have the charges dropped, it is because she is being pressured to do so, either by the accused himself, or by family members. This could be for cultural reasons, financial pressures, even because of fear. To deal with this issue, the police usually have a complainant sign their statements, or videotape them under oath, so that if they change their mind later, the original evidence can still be used to prosecute. The Crown could also postpone the case to track down the complainant, and can even request that a warrant be issued for her arrest.
Yes, although government statistics show that 85% of domestic charges are reported by women against men.
Unfortunately, as in any situation where rules are rigidly imposed, there is the risk of abuse and manipulation. As shocking as it sounds, there are many cases where allegations of domestic violence abuse are fabricated or exaggerated because one of the parties is angry, jealous or bitter. Sometimes it is done to gain an advantage in a divorce or custody battle. The reality is that because of the zero tolerance policies that are currently in force in this province, which were imposed with the best of intentions, a few unscrupulous people who choose to abuse the system by falsely reporting an allegation of domestic abuse to the police can get away with it very easily. One call is all it takes to have a spouse or domestic partner jailed, removed and banned from the family home, and to gain a major advantage in family court. You need a skilled and experienced lawyer to fight against that kind of insidious behaviour.
There are always two sides to every story; this is especially true in domestic violence cases. Domestic violence cases are “credibility” cases, where often the only people who know what really happened are the complainant and the defendant. These require a lawyer with a great deal of knowledge and experience to defend successfully.
The first step that we at the Defence Group will take to prepare your case is to get a complete understanding of your domestic relationship. Are you married, separated, divorced? Are you fighting with your spouse about custody, support, division of assets, possession of the matrimonial home? Often, allegations of domestic violence are fabricated or exaggerated by one spouse to gain an advantage in custody or divorce proceedings; a detailed analysis of the situation, including the complainant’s motives, is an essential first step in preparing a strategy to defend your case.
Once we have a good understanding of the background and the incident, we will interview witnesses, review the disclosure, conduct an independent review of the evidence, even retain the services of a private investigator if the situation requires it. If you have a divorce lawyer, we will work with him or her to make sure that we have access to all of the information that will help us to defend your case and help with your matrimonial case as well.
At The Defence Group, we have a high success rate in getting domestic violence charges dropped without a trial- which saves you time and money. Because of our extensive preparation and background analysis, and with our specialized knowledge of how the police and prosecutors work, our experience, and our contacts, we are often able to prove to the Crown that the charges were fabricated by a spouse or partner who was intent on manipulating the justice system, and persuade them to drop the case. Our approach to negotiation in these cases is one of the big advantages of hiring the Defence Group to represent you in a domestic violence case..Back
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