I’ve been charged with assaulting my partner (or family member): domestic violence and the courts
Date Updated: April 21, 2020
Written By: Ravi Prithipaul (Alberta Criminal Defence Lawyer)
Summary
Domestic violence encompasses a broad category of offences such as assault, mischief, threats, aggravated forms of assault, sexual assault or interference, and criminal harassment, in which the parties are involved in intimate relationships: boyfriends, girlfriends, spouses, children, step or adoptive parents, or other family relations. By far the most common type of charge is assault where the accused is the domestic partner of the complainant: eg. husband charged with assaulting his wife, or girlfriend vs. boyfriend, etc. These cases sometimes arise in the context of relationship breakdowns.
Detailed Law Breakdown
The prosecution and courts treat allegations of violence directed against family members or domestic partners very seriously. It is considered a breach of trust to abuse a person who is bound a by a family or spousal relationship. To criminally harm a family member breaches the trust that exists in intimate and family relationships. Marriage is not a pre-condition. Domestic violence may occur between boyfriends and girlfriends, step parents and their children, and extended members of a family.
An assault can include any form of contact, even indirect, ranging from making a threatening gesture towards another person, to slapping and pushing, to more serious forms of assault resulting in bodily harm and the use of a weapon. Other frequently encountered circumstances involve breaking into a residence, stealing property belonging to a partner or family member, making threats, or engaging in harassment which causes the person to believe that their safety is at risk.
Following arrest, the question of release from custody arises. A dominant concern in these types of cases is the need to protect the safety of the alleged victim(s). The person charged with domestic violence is usually subjected to a “no contact” condition. This type of condition requires that the accused, in order for he or she to be released from police custody, must promise not to have any contact whatsoever (whether in person, through third parties, by text, email, telephone, regular mail, etc.) with the complainant(s). The authorities may also stipulate that the accused stay away from the complainant’s residence.
Thoughts from a Criminal Lawyer’s Perspective
Domestic cases are often highly emotional for everyone concerned, especially when they occur within divorces or family disputes. Experienced defence counsel should be contacted immediately. Mr. Ravi Prithipaul, Q.C. has nearly 30 years’ experience in defending these types of cases and advising witnesses of their rights and obligations.
As soon as a person is arrested, he or she should ask, politely, to speak to a lawyer. Legal advice is essential because the police will normally want to obtain a statement from the accused while he or she is in their custody. Legal advice is a necessity.
A defence lawyer will advise a client on the right to remain silent (which means the right to not give the police a statement), how to secure release from police custody, and the types of conditions that will likely be attached to a release order. In the longer term, defence counsel will obtain disclosure from the Crown, identify potential defences, and advise the accused on how to collect and preserve relevant evidence on matters such as self-defence, consent (eg. both parties were equally responsible for the physical altercation), provocation, accident, etc.
Punishments for domestic violence vary widely from fines to jail. Beware, however: even seemingly minor incidents can attract jail sentences. On the other hand, there may be ways to defend these charges at trial, or to negotiate outcomes less severe than a criminal conviction.
It sometimes happens that, after a cooling off period, a complainant will reconsider and desire contact with the accused. That can potentially raise two issues: whether the no-contact conditions of release should be modified or even deleted, and more fundamentally, whether charges should be withdrawn or resolved in some fashion. Criminal defence counsel should be involved in both areas. First, changing release conditions can be quite complicated. Second, counsel can assist a complainant because the Crown will usually not treat the complainant’s word, by itself, as determinative.
It is a popular misconception that the complainant can control the process. We often hear, for example, that the accused’s partner, whether a boyfriend, girlfriend, husband or wife, “does not want me convicted – if I go to jail, I can’t support the family”. However, in our system of justice, it is not individuals who prosecute criminal charges, but the Crown in the name of the state or the community. A prosecutor is not limited to the wishes of a complainant in deciding whether to continue a prosecution.
An important factor is whether the complainant has obtained independent legal advice. This is another way in which a good criminal lawyer can help. The same lawyer cannot represent both the person charged with domestic violence and the complainant. However, a complainant can retain a lawyer of his her own in order to receive advice on how to communicate their position to the Crown. In these situations, the lawyer will advise the complainant on what the law requires of witnesses and how best to advance their wishes concerning, for instance, whether contact with the accused is desirable or whether the case should proceed.
On his or her own, a complainant can get into trouble if she or he tries to circumvent the obligations that the law imposes on witnesses. Independent legal advice protects witnesses by advising them of their rights and obligations and informing the Crown of their position through counsel, all without incurring legal penalties for serious criminal offences such as obstruction of justice, public mischief, or perjury.
Ravi Prithipaul, Q.C. is a capable criminal defence lawyer with over 25 years of experience in defending domestic violence cases and providing witnesses with independent legal advice. He understands that these are usually emotionally difficult situations. If you are charged with any form of assault, from assault alone to aggravated assault, uttering threats, sexual offences, or criminal harassment, call Mr. Prithipaul at 780 705 7737 (www.prithilaw.com).
Last modified: April 30, 2020
