• 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. J.F. – Dawson Creek Provincial Court

Charge: Sexual Assault.
Issue: The credibility of the complainant's testimony during this three day trial.
Result: After vigorous cross examination of the complainant and another Crown eyewitness, Mr. Gauthier made submissions which were accepted by the trial judge. The court found our client to be not guilty and aquitted him of the charge. No jail. No criminal record.

R. vs. D.C. – Port Coquitlam Provincial Court

Charges: Sexual Assault (x2).
Issue: In the circumstances of these historic charges and our client's rehabilitation, whether a community based sentence was appropriate.
Result: Notwithstanding that Crown counsel sought a 20 month jail sentence, the trial judge agreed with Mr. Mines' submission that, in the circumstances of our client's genuine remorse and rehabilitation, it was appropriate to  grant a conditional sentence of 21 months. No jail.

R. vs. G.S. – North Vancouver Provincial Court

Charge: Assault (domestic).
Issue: Given the rehabilitative steps we were able to guide our client through, whether it was in the public interest to continue with the prosecution.
Result: Mr. Mines was able to persuade Crown counsel to enter a stay of proceedings, brining the matter to an end. No criminal record.

B.G. – Vancouver Provincial Court

Charge: Theft/Fraud Over $5000 (from employer).
Issue: Given the self rehabilitation and civil settlement made by our client, whether a non-custodial sentence was appropriate in this $60,000 theft from employer case.
Result: Mr. Gauthier was able to persuade the Court that the appropriate sentence was an 18 month community-based sentence with 6 months of house arrest. No jail.

R. vs. J.C. – Vancouver Provincial Court

Charge: Assault (domestic).
Issue: Given the rehabilitative steps we were able to guide our client through, whether it was in the public interest for Crown counsel to continue the prosecution.
Result: Mr. Mines was able to provide new information to Crown and was ultimately able to persuade Crown to enter a stay of proceedings. No criminal record.

R. vs. S.L. – Insurance Fraud Investigation

Charge: Fraud Over $5000.
Issue: Given our client's settlement of the fraud claim by paying funds back on a "without prejudice" basis, whether it was in the public interest to proceed with a criminal prosecution.
Result: Mr. Gauthier was able to persuade the investigator to not forward any report for charge assessment. No charges were approved. No criminal record.

R. vs. K.A. – Surrey Provincial Court

Charge: Assault Causing Bodily Harm.
Issue: Whether the complainant and the Crown witnesses gave reliable and crdible evidence at trial.
Result: After vigorous cross examination, the trail judge accepted Mr. Gauthier's submissions that Crown counsel had failed to prove its case. Not guilty verdict. No criminal record.

R. vs. X.L. – Vancouver Provincial Court

Charge: Assault (domestic).
Issue: Whether the information police provided to Crown counsel would cause Crown to conclude there was a substantial likelihood of obtaining a conviction.
Result: Mr. Mines provided information to Crown on our client's behalf. He was able to persuade Crown that our client was in fact the victim of an assault and was acting in self defence. No charges were approved. No criminal record.

R. vs. M.S. – Vancouver Provincial Court

Charges: Criminal Harassment (domestic).
Issue: Whether our client's mental state was such that Crown counsel could prove that she had the necessary level of intent to be convicted of a criminal offence.
Result: Mr. Gauthier was able to provide our client's medical documentation to Crown which resulted in Crown deciding not to proceed with the prosecution. Stay of proceedings. No criminal record.

R. vs. J.X. – Vancouver Provincial Court

Charges: Driving while prohibited (MVA).
Issue: Whether the delay in approving the charge was relevant to our client's right to a speedy trial.
Result: Mr. Mines was able to persuade Crown counsel to proceed on the lesser offence of driving without a valid driver's licence. Rather than a 12 month driving prohibition and 10 penalty points, our client was sentenced to a 3 month driving prohibition and received only 3 penalty points.

R. vs. Q.B. – North Vancouver RCMP investigation

Charges: Sexual assault.
Issue: Whether or not the acts complained of were consensual or not, and whether it was in the public interest to proceed with a criminal prosecution.
Result: Mr. Mines provided further information to th einvestigator on our client's behalf that ultimately led to police declining to recommend any criminal charges. No charge was approved. No criminal record.

R. vs. J.G. – Vancouver Provincial Court

Charges: Assult (domestic).
Issue: Given the rehabilitative steps we were able to guide our client through, whether it was in the public interest for Crown counsel to continue the criminal prosecution.
Result: Based on the information Mr. Mines provide regarding our client, Crown directed a stay of proceedings bringing the matter to an end. No 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.