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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. J.C. – Vancouver Provincial Court

Charges: Uttering a threat; Posession of a weapon (knife) for a dangerous purpose.
Issue: Given our client's circumstances and the circumstances of the incident, whether it was in the public interest to proceed with a criminal prosecution.
Result: Mr. Gauthier was able to provide Crown with background information about our client and the incident which caused Crown to conclude it was not in the public interest to continue the prosecution. Stay of proceedings. No criminal record.

R. v. M.M. – North Vancouver Provincial Court

Charges: Theft Under $5000 (shoplifting).
Issue: Whether it was in the public interest to proceed with a criminal prosecution in this $900 shoplifting case.
Result: Mr. Mines was able to provide information to Crown counsel about our client's personal circumstances, resulting in Crown referring our client to the Alternative Measures program. No criminal record.

R. v. J.Z. & Q.M. – Insurance Fraud Investigation

Charges: Fraud Over $5,000.
Issue: Whether our client's were responsible for approximately $15,000 in false claims unknowingly made in their names by a health care provider.
Result: Mr. Gauthier was able to settle with the insurance provider. No criminal charges were forwarded against our clients. Mr. Gauthier was also able to assist with the first steps of recovering the funds from the dishonest health care provider. No criminal record.

R. v. V.N. – Surrey Provincial Court

Charges: Sexual Assault (police investigation).
Issue: Whether there was sufficient evidence to support a criminal prosecution.
Result: Mr. Gauthier opposed the police application to extend the time period they could continue to retain seized evidence and he provided advice to our client in steering him through the investigation. The matter concluded with no criminal charges being forwarded to Crown. No criminal record.

R. v. R.T. – Insurance Fraud Investigation

Charge: Insurance Fraud Under $5,000 investigation.
Issue: Given our client's rehabilitation and repayment of disputed claims, whether it was in the public interest to proceed with a criminal prosecution.
Result: Mr. Mines was able to persuade the insurance company to settle the matter on a civil basis. No criminal charges forwarded. No criminal record.

R. v. G. A.G. – Vancouver Provincial Court

Charge: Assault (domestic).
Issue: Whether there was a substantial likelihood of a conviction in this case.
Result: Mr. Mines was able to persuade Crown counsel that, given the lack of cooperation by the complainant, that there was no prospect of a conviction. Crown counsel did not approve any charges and, on Mr. Mines' representations, agreed to cancel the scheduled court date and to direct police to cancel our client's Undertaking to Appear. No criminal record.

R. v. L.M. – Vancouver Provincial Court

Charge: Mischief Over $5000.
Issue: Whether Crown could prove the value of damage alleged to have been caused by our client.
Result: Mr. Mines was able to persuade Crown counsel that because it could not accurately prove the value of damage, and that our client had taken appropriate steps of self-rehabilitation,  Crown elected to not approve any charges. No criminal record.

R. v. H.K. – Port Coquitlam Provincial Court

Charge: Assault.
Issue: Whether it was in the public interest to proceed with a criminal prosecution in this "road rage" case.
Result: Mr. Mines was able to provide information to Crown counsel about our client's personal circumstances and the circumstances of the incident which resulted in Crown staying the charge after our client completed Alternative Measures. No criminal record.

R. v. J.S. – North Vancouver Provincial Court

Charges: Uttering Threats (x3).
Issue: Whether or not our client was entitled to be sentenced to a conditional discharge rather than being convicted of this offence.
Result: Upon hearing Mr. Gauthier's submissions on our client's behalf, the Court granted our client a conditional discharge rather than entering a conviction. No criminal record.

R. v. S.G. – Surrey Provincial Court

Charges: Assault; Mischief. Issue: Given the rehabilitative steps that we guided our client through and advocating on her behalf that there was a reasonable self defence issue, whether there was a substantial likelihood of securing a conviction.
Result: Mr. Gauthier was able to persuade Crown counsel that there was no substantial likelihood of a conviction. Ultimately Crown entered a stay of proceedings. No criminal conviction. No criminal record.

R. v. K.B.K. – Vancouver Provincial Court

Charges: B&E; Assault; Distribute Intimate Images.
Issue: Whether the Crown could comply with a defence disclosure request and possibly face a Charter application to have charges stayed due to unreasonable delay.
Result: On the eve of the trial, Mr. Mines was able to persuade Crown to allow our client to plead guilty to the least serious charge, assault by slapping. Crown nonetheless sought a conviction and probation, but after hearing Mr. Mines' submissions, the trial judge granted our client a conditional discharge. No criminal conviction.

R. v. C.B.S. – Richmond Provincial Court

Charges: B&E; Assault; Distribute Intimate Images.
Issue: Whether the Crown could comply with a defence disclosure request and possibly face a Charter application to have charges stayed due to unreasonable delay.
Result: On the eve of the trial, Mr. Mines was able to persuade Crown to allow our client to plead guilty to the least serious charge, assault by slapping. Crown nonetheless sought a conviction and probation, but after hearing Mr. Mines' submissions, the trial judge granted our client a conditional discharge. No criminal conviction.

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.