• Vancouver at night

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. v. R.L. – New Westminster Supreme Court

Charge: Sexual Assault.
Issue: Whether there was a substantial likelihood of a conviction and whether it was in the public interest to continue with the prosecution in this retrial after a deadlocked jury decision.
Result: upon considering all of Mr. Mines' representations, Crown counsel entered a stay of proceedings. No jail. No criminal record.

R. vs. J.H. – Richmond Provincial Court

Charge: Sexual Assault.
Issue: Whether there was a substantial likelihood of a conviction and whether it was in the public interest to continue with the prosecution in this retrial after a deadlocked jury decision.
Result: upon considering all of Mr. Mines' representations, Crown counsel entered a stay of proceedings. No jail. No criminal record.

R. vs. B.J. – Downtown Community Court

Charge: Theft of property of a value not exceeding $5,000
Issue: Whether there was a substantial likelihood of conviction and whether it was in the public interest to proceed with the prosecution.
Result: Mr. Johnston identified weaknesses in the available video evidence which persuaded the Crown to direct a stay of proceedings on the charge. No jail. No criminal record.

R. vs. A.M. = Vancouver Provincial Court

Charges: Assault with a Weapon; Assault Causing Bodily Harm.
Issue: Whether there was a substantial likelihood of conviction and whether it was in the public interest to proceed with the prosecution.
Result: Mr. Johnston provided Crown counsel with information about our client’s circumstances, including his lack of prior criminal offending, his efforts at rehabilitation, and the fact that a conviction for either offence could result in the client’s deportation, an outcome which Mr. Johnston argued would be disproportionate to the seriousness of alleged offences. At the same time, Mr. Johnston pointed out weaknesses in the evidence against our client. The Crown directed stays of proceedings on both charges. No jail. No criminal record.

R. vs. A.V. – Vancouver Provincial Court

Charges: Uttering Threats x3; Criminal Harassment; Breach of Release Order (domestic).
Issue: Whether there was a substantial likelihood of conviction and whether it was in the public interest to proceed with the prosecution of these matters.
Result: Mr. Gauthier was able to persuade Crown counsel that it was more appropriate to deal with these matters in the context of Family Court. Ultimately Crown did not approve the uttering threats and criminal harassment charges and Mr. Gauthier persuaded Crown that there was no public interest in prosecuting the breach charge and to enter a stay of proceedings. No jail. No criminal record.

R. vs. K.L. – Terrace RCMP Investigation

Charges: Assault.
Issue: Whether there was a substantial likelihood of a conviction and whether it was in the public interest to proceed with the prosecution.
Result: Mr. Mines presented additional information to Crown counsel which resulted in Crown  declining to approve any charge.  No criminal record.

R. vs. O.P. – Victoria Provincial Court

Charges: Voyeurism; Criminal harassment.
Issue: Whether Crown could prove that our client actually recorded and distributed images without consent of the complainant.
Result: Mr. Gauthier was able to persuade Crown counsel to proceed only on the criminal harassment charge. After hearing Mr. Gauthier's submissions, the trial judge granted our client a conditional sentence order with a curfew for two months. No jail.

R. vs. T.B. – Vancouver Provincial Court

Charges: Indecent Act; Assault With a Weapon; Possessing of a Weapon for Dangerous Purpose (x2); Robbery; Uttering Threats; Theft of Property of a Value not Exceeding $5,000.
Issue: Whether there was a substantial likelihood of conviction and whether it was in the public interest to proceed with prosecution of all counts; whether a jail sentence was appropriate.
Result: Mr. Johnston identified weaknesses in the evidence which persuaded the Crown there was no reasonable prospect of conviction on the Indecent Act charge.  Mr. Johnston persuaded Crown counsel  to resolve the case on three of the remaining counts and to stay all remaining charges. After hearing Mr. Johnston's submissions regarding our client's personal circumstances and his significant rehabilitation efforts,  the Court agreed to release our client from custody and to place him on a probation order with conditions supporting his rehabilitation. No further jail time.

R. vs. M.G. – RCMP Investigation

Charges: Possession for the purpose of trafficking.
Issue: Whether there was a substantial likelihood that Crown could establish that our client was a willing participant in the alleged drug trafficking scheme.
Result: Mr. Mines was able to provide information and persuade police to not seek any criminal charges against our client. No No charges were approved. Our client's vehicle was retuned. No criminal record.

R. vs. A.K. – New Westminster Provincial Court

Charges: Assault.
Issue: Whether there was a reasonable likelihood of a conviction and whether it was in the public interest to proceed.
Result: Mr. Mines was able to provide additional information and persuaded Crown counsel stay the charge upon our client completing the Alternative Measures Program. No criminal record.  

R. vs. K.L. – Vancouver Police Investigation

Charge: Assault Peace Officer.
Issue: Whether there was a substantial likelihood of a conviction in this case which involved an alleged assault of a police officer.
Result: Mr. Gauthier provided information and a video to Crown counsel which showed that the police made an unlawful arrest thereby giving our client lawful grounds to defend himself. Mr. Gauthier was able to persuade Crown to not approve any charges. No criminal record.

R. vs. C.D. – Vernon Provincial Court

Charges: Assault with a weapon; Mischief to property.
Issues: Whether there was a substantial likelihood of a conviction and whether it was in the public interest to proceed with the criminal prosecution in this case where our client allegedly intentionally collided with the complainant's vehicle.
Result: Mr. Gauthier provided additional information to Crown counsel and was able to persuade Crown to resolve this matter with a s.810 Recognizance (Peace Bond).    

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.