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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. v. D.M. – Vancouver Provincial Court

Charges: Assault (domestic). Reduced to Peace Bond.
Issue: Given the rehabilitative steps we guided our client through, whether it was in the public interest to proceed with a criminal prosecution.
Result: Mr. Mines was able to persuade Crown counsel to stay the criminal charges  upon our client entering into a Peace Bond with a 12 month "no contact" order. No criminal record.

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

Charges: Assault (domestic). Reduced to Peace Bond.
Issue: Given the rehabilitative steps we guided our client through, whether it was in the public interest to proceed with a criminal prosecution.
Result: Mr. Mines was able to persuade Crown counsel to stay the criminal charges  upon our client entering into a Peace Bond with a 12 month "no contact" order. No criminal record.

R. vs. B.H. – North Vancouver Provincial Court

Charges: Assault (domestic).
Issue: Given the rehabilitative steps we were able to guide our client through, whether there remained a public interest in continuing with the prosecution.
Result: Mr. Gauthier was able to provide information about our client to Crown counsel which ultimately led to Crown entering a stay of proceedings. No criminal record.

R. vs. M.A. – Non Academic Misconduct Investigation

Charges: Sexual harassment.
Issue: Whether our client's behaviour amounted to "sexual harassment" as defined by the university's conduct policy.
Result: Mr. Gauthier was able to prepare our client for the University's hearing and, upon hearing all of the evidence, the University ruled that our client had not engaged in sexual harassment or any behaviour that contravened the institution's policies.

R. vs. Y.Z. – Richmond Provincial Court

Charge: Attempted Murder (reduced to assault with a weapon). Issue: Given the circumstances of the event and given our client's mental health condition, whether our client truly had the intention to kill the complainant. Result: Mr. Gauthier was able to provide medical/psychological information to Crown counsel and, ultimately, was able to persuade Crown to proceed on the lesser offence of assault with a weapon and to make a joint recommendation to the court for a conditional discharge, rather than the lengthy jail sentence they were originally seeking.  After hearing Mr. Gauthier's submissions, the Court granted our client the discharge. No criminal conviction. No jail.

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

Charges: Assault x2 (Reduced to Peace Bond).
Issue: Given the potential for self-defence in this case, whether it was appropriate for the criminal prosecution to continue.
Result: Mr. Mines was able to provide information to Crown counsel which resulted in Crown's decision to proceed with a Peace Bond rather than the criminal charges. No criminal record.

R. v. G.K. – Fort St. John Provincial Court

Charge: Theft/ Fraud Over $5000 (from employer).
Issue: Whether Crown could prove the alleged $300,000 offence and, given the rehabilitative steps that we were able to guide our client through, whether a jail sentence was necessary.
Result: Mr. Gauthier was able to persuade Crown counsel that they could only prove that our client was responsible for a $74,000 theft. Further, despite the breach of trust, in this case, Mr. Gauthier was able to persuade Crown counsel to seek a conditional sentence, rather than jail. After hearing Mr. Gauthier's submissions, the court sentenced our client to a 2 year conditional sentence. No jail.

R. vs. C.Y. – Richmond Provincial Court

Charges: Assault with a weapon ( reduced to Peace Bond).
Issue: Given the rehabilitative steps we were able to guide our client through, whether it was in the public interest to proceed with the criminal prosecution.
Result: Mr. Mines was able to persuade Crown counsel to allow our client to resolve this matter with a s. 810 Recognizance (Peace Bond) for a period of 12 months. Stay of proceedings on the criminal charge. No criminal record.

R. vs. F.K. – Vancouver Provincial Court

Charges: Theft and Fraud Over $5000 (from employer).
Issue: Whether the pre-charge delay of 3.5 years would reduce the sentence in this $215,000 employee fraud case.
Result: Mr. Mines was able to persuade the trial judge and Crown counsel that there was merit to our application for a judicial stay of proceedings based on our client's inability to properly defend the charges due to a delay of about 4 years in getting the charges approved. Notwithstanding this breach of trust, Mr. Mines was able to negotiate a plea arrangement in which our client received a 2 year conditional sentence order with a 10 pm curfew for 12 months. No monies were ordered to be repaid. No jail.

R. vs. M.P. – Abbotsford Police Investigation

Charges: Uttering Threats.
Issue: Whether it was in the public interest to proceed with a criminal prosucution.
Result: Mr. Gauthier was able to provide information to Crown and to ultimately persuade Crown counsel to not approve any charge in this case. No charge approves. No criminal record.

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

Charge: Failing to stop at an accident resulting in bodily harm.
Issue: Given the circumstances of the offence, our client's background and his extreme remorse, whether a jail sentence was warranted.
Result: Mr. Gauthier was ble to direct our client through a course of psychological counselling and was able to persuade Crown counsel to agree to a non-custodial sentence. After hearing Mr. Gauthier's submissions, the Court sentenced our client to a 12 month conditional sentence. No jail.

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

Charges: Theft Over $5000 (from employer).
Issue: Whether Crown counsel had sufficient evidence to meet the charge approval standard.
Result: Mr. Mines was able to persuade Crown counsel that important evidence would be missing from a cenrtal witness and to not approve any charges. 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.