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Domestic (Spousal) Assault

The Charge

Police and prosecutors in British Columbia have a zero tolerance policy with respect to domestic violence. Whenever police receive a complaint that domestic violence has occurred, they will take swift action to investigate. When they reach the conclusion that an offence has probably taken place, they will arrest the accused. Policy dictates that the accused must be held in custody until police can ascertain that the complainant is safe, and the accused will not be released until they appear in court for a bail hearing and are released only on their promise to not have contact with the complainant until the prosecution concludes.  In most cases, a “no contact” order will have the effect of forcing the accused to, at least temporarily, find other accommodation. It can also have a huge impact on the ability for the accused to have contact with any children of the relationship. Clearly, domestic violence allegations have the capacity to severely change the lives of family members.

Assault

A majority of domestic assault allegations result in charges of common assault, pursuant to s. 265 of the Criminal Code. Assault is defined as “force that is intentionally applied to another person without their consent.” Typical domestic assault allegations involve allegations of shoving, hitting, or kicking. More serious allegations involve acts that result in bodily harm or acts that involve weapons, including objects used as a weapon.

Threatening

Under s. 264.1 of the Criminal Code, anyone who knowingly utters a threat to another person to cause death or bodily harm, or to damage or destroy property, is guilty of an offence. The gist of the offence is that the Crown prosecutor must prove that the accused intended their remarks to genuinely cause fear in the complainant. The history of the couple’s relationship and the context under which the words were spoken will play a significant role in prosecutions for threatening.

Criminal Harassment

Section 264(1) of the Criminal Code sets out the requirements that the prosecution must prove in cases of criminal harassment. The offence generally involves proving that the accused conducted a pattern of behavior that caused the complainant to “fear for their safety or of anyone known to them.” The law prohibits conduct such as: repeatedly following a person from place to place; repeatedly communicating with a person either directly or indirectly; besetting or watching the person at their home or workplace; or engaging in threatening conduct directed at the person or their family.

The Investigation

How and when a complaint is made to police will determine the nature of the investigation into a domestic violence complaint. In some cases, it is the target of the alleged violence themselves who calls police. In others, it is a person who observed the incident. In some situations, police are called immediately; in other situations, police are only called days, weeks or months after the alleged incident. In all cases, when police receive a complaint, they will move quickly to investigate and possibly arrest the suspect. Police will always want to hear the suspect’s side of things. As experienced lawyers, this is where we can help our clients understand that their Charter rights guarantee that they need not speak to police because s. 7 of the Charter guarantees the right to remain silent.

In situations where clients contact us before they are arrested, we will contact police to make inquiry. We act as a “buffer” between our client and police. There is nothing that we can say on our client’s behalf that can be used against them. We will strive for police to not recommend charges, or where charges do go forward, we will strive to arrange for an early release from custody on the most liberal conditions that are appropriate.

Recent Successes

R. vs. A.N. - Vancouver Provincial Court

Charges: Assault with a Weapon.
Issue: Given the rehabilitative steps we guided our client through, whether it was in the public interest for Crown to seek a conviction on this charge.
Result: Mr. Johnson was able to persuade Crown to permit our client to plead to the lesser offence of common assault. After hearing Mr. Johnson's submissions, the court granted our client a conditional discharge. No criminal conviction.

R. vs. J.J. - Richmond Provincial Court

Charges: Assault Causing Bodily Harm.
Issue: Whether there was a substantial likelihood of  the Crown being able to prove that bodily harm occurred.
Result: Mr. Johnson was able to persuade Crown to permit our client to plead to the lesser offence of common assault. After hearing Mr. Johnson's submissions, the court granted our client a conditional discharge. No criminal conviction.

R. vs. S.W. - Vancouver Provincial Court

Charge: Assault (domestic).
Issue: Given that the complainant had instigated the altercation, whether it was in the public interest for our client to be convicted of the offence.
Result: We were able to guide our client through a course of rehabilitation and, after hearing Mr. Mines' submissions, the Court granted our client a conditional discharge and placed him on a non-reporting probation order for six months. No criminal conviction.

R. vs. S.W. - Richmond Provincial Court

Charge: Refusing to comply with a testing demand.
Issue: Given the circumstances of the offence and our client, whether it was in the public interest to proceed with the criminal prosecution.
Result: Mr. Mines was able to persuade Crown counsel to proceed on the lesser Motor Vehicle Act offence of driving without due care. Rather than a criminal conviction and a minimum 12 month driving prohibition, our client was liable to pay a $350 fine and a 2 month driving prohibition. No criminal record.

R. vs. H.S. - North Vancouver Provincial Court

Charge: Driving While Prohibited.
Issue: Given the circumstances of the offence and our client, whether it was necessary for Crown to proceed with the driving while prohibited charge, which carries a mandatory minimum 12 month driving prohibition.
Result: Mr. Johnson was able to persuade Crown to proceed on the lesser Motor Vehicle Act charge of driving without a driver's licence. After hearing Mr. Johnson's submissions our client was sentenced to a fine and a 4 month driving prohibition.

R. vs. J.S. - North Vancouver Provincial Court

Charge: Assault Causing Bodily Harm (domestic).
Issue: Whether the Crown could prove that bodily harm resulted and, whether the rehabilitative steps our client had taken justified the Court granting a conditional discharge.
Result: Mr. Mines was able to persuade Crown counsel to proceed on the charge of common assault. After hearing Mr. Mines' submissions, the Court granted our client a conditional discharge. No criminal conviction.

R. vs. C.M. - North Vancouver Provincial Court

Charge: Assault; Threatening.
Issue: Whether there was a substantial likelihood of conviction in this alleged "road rage" case.
Result: Mr. Johnson was able to provide information to Crown counsel on our client's behalf that led Crown to conclude there was no substantial likelihood of conviction. No charge approved. No criminal record.

R. vs. M.D. - North Vancouver Provincial Court

Charges: Theft Under $5000; Uttering Threats.
Issue: Whether, given our client's circumstances and remorse, whether it was in the public interest for criminal charges to proceed.
Result: We were able to provide information to police investigators which resulted in police deciding to not forward any charges to Crown. No criminal record.

R. vs. H.L. - Richmond Provincial Court

Charge: Sexual Assault.
Issue: Whether there was a substantial likelihood of a conviction.
Result: Mr. Johnson was able to provide information to the Crown on our client's behalf that persuaded Crown that the case did not meet the charge approval standard. No charge was approved. No criminal record.

R. vs. S.F. - Provincial Court of Newfoundland

Charge: Possession for the Purpose of Trafficking (Marijuana).
Issue: Whether it there was a substantial likelihood of obtaining a conviction.
Result: Upon considering Mr. Johnson's representations, Crown counsel concluded that there was no longer a likelihood of conviction. Crown withdrew the charge, bringing the matter to an end. No criminal record.

R. vs. M.B. - Surrey Provincial Court

Charge: Application for firearms prohibition and forfeiture.
Issue: Whether Crown could establish that our client posed a risk to himself or others.
Result: Mid trial, Mr. Mines was able to obtain a successful resolution in which our client consented to an 18 month prohibition rather than the 5 years Crown had been seeking.  Further, rather than having to forfeit the  $15,000 worth of weapons that police seized,  Crown agreed to allow our client to sell them to a suitable buyer.

R. vs. C.B. - Vancouver Police Investigation

Charge: Possession of proceeds of crime.
Issue: Whether there was any lawful authority to arrest our client and seize funds from him.
Result: Mr. Johnson was able to persuade the investigating officer that there was no basis to search our client and to return the $2400 cash that he had seized. No charges approved. Not criminal record.

The Defence

Self-defence and consent are defences to an assault allegation. Lack of intention is a defence to allegations of uttering a threat and criminal harassment. We are lawyers experienced in advancing these defences in trial courts, where we have certainly had success.

Domestic violence cases, however, are often different from other assault or threatening cases because of the family dynamic at play. A criminal charge and conviction affects not only the accused person but their partner and any children as well. Each domestic violence case is unique, because the needs of each family member must be balanced with the community’s need to promote safety within the family unit.

In a significant number of cases, the alleged victim does not want the matter to proceed. It is the Crown counsel, however, that has control over the prosecution. This can become a very complex issue. Our experience often allows us to deal with domestic violence cases by seeking extra-judicial measures to resolve the case without a criminal conviction. We are able to assist clients by finding appropriate resources, such as counselling for substance abuse or anger management. The goal is to avoid a criminal conviction.

Section 810 Recognizance (Peace Bond)

The Criminal Code provides an alternative to a domestic assault prosecution, commonly known as a s. 810 Peace Bond. The distinction is important, because a person placed on a peace bond is not “convicted” and is not considered to have a criminal record. A peace bond usually limits or prevents contact with the complainant. To obtain a peace bond, the Crown must prove, on balance, that the complainant “has a reasonable fear for their safety,” based on the defendant’s past actions. With over 30 years’ experience in domestic assault cases, we understand when it may be appropriate to seek resolution of an assault or threatening charge by entering into a peace bond. Our goal is to obtain the best possible result.

Start with a free consultation.

If you are being investigated by police or if you’ve been charged with a criminal or driving offence, don’t face the problem alone. Being accused of an offence is stressful. The prospects of a criminal record or jail sentence can be daunting. Even if you think there is no defence, we may be able to help. To schedule a free initial consultation with one of our Vancouver lawyers, contact us now.