What is required for the assault to be considered domestic?
What is considered domestic violence in Canada?
This article is going to help explain a bit about what domestic violence is and how the justice system works in Manitoba. If you have been charged with a domestic assault or another domestic violence offence, I am hoping this will help answer some of your preliminary questions.
In the Criminal Code, there is no specific charge of “domestic violence” or “domestic assault.” Section 265 of the Criminal Code defines what assault is and section 266 outlines what the maximum punishment is for assault. But there is no description or definition of a domestic assault. However, the Criminal Code tells Judges that they must consider if a victim of a crime is an intimate partner when deciding what a fit and appropriate sentence or punishment is. Additionally, section 718.201 of the Criminal Code says:
A court that imposes a sentence in respect of an offence that involved the abuse of an intimate partner shall consider the increased vulnerability of female persons who are victims, giving particular attention to the circumstances of Aboriginal female victims.
So, domestic violence charges are treated a differently than non-domestic violence cases. In order to be called a “domestic violence” charge, there must be two things:
The relationship between the accused and the complainant is, or was, a romantic relationship. This includes any relationship where the two people are engaged in a sexual or romantic relationship such as a casual relationship, boyfriend/girlfriend, common law, or marriage. The two people do not have to still be in a relationship at the time the complaint is made, as long as they were in a romantic relationship at some point.
There is a criminal charge or offence that is reported. The most common charge we see in domestic violence situations is assault, but domestic violence includes all types of assaults such as assault with a weapon, assault causing bodily harm, aggravated assault, and sexual assault. It also includes other types of crimes that may not seem like other violent offences, such as uttering threats, forcible confinement, criminal harassment, and property offences - like mischief to property under $5,000.
In Winnipeg, criminal cases are sorted into one of two categories; domestic violence or non-domestic violence. Domestic violence cases are so common that Manitoba Justice has two entire units of Crown Attorneys in Winnipeg assigned to deal with these cases (Domestic Violence Intensive Case Assessment Process Unit and the Domestic Violence Unit). Over my career, I have handled hundreds of cases involving domestic assault.
Additionally, in Manitoba, there is a zero tolerance policy for domestic violence cases. What this means is that as soon as police officers receive information that a criminal offence has occurred in the context of a domestic relationship, they must make an arrest. In some cases, a complainant does not want to make a formal or signed statement with the police, but that is not necessary for the police to make an arrest. Unlike American TV shows and movies, a complainant does not get to decide to lay a charge or not. That decision is up to the police officers. Then, once a charge is laid, the Crown Attorney (prosecutor) is the only person that can decide if the charge should proceed or if it should be dropped.
WHAT HAPPENS AFTER I AM CHARGED WITH DOMESTIC ASSAULT?
In many cases, the police officers who arrest you will release you with a court date and some rules or conditions you need to follow. In other cases, you may be kept in custody and then released with the consent of a Crown Attorney or if a Judge grants your release from custody after a bail application. Typically, the conditions are part of an Undertaking, but they can also be part of a Recognizance or a Release Order. All of these, including an Undertaking, are court orders and if you break the rules or conditions on them, you are committing a criminal offence and you could be arrested and charged. The conditions remain in effect until the court case is complete; the charges are dropped, you have plead guilty and received your punishment from the Judge, or the trial has finished. There are ways to vary or change these court orders, but you may want to talk to a lawyer to get more information about how that works and whether it is worthwhile to try to do that.
The most common condition on your paperwork is a no contact order, or an NCO, with the person who made the complaint to the police. In some cases, you may be happy to follow the NCO. But in many cases, you will still want to communicate with your partner, especially if you share children together. It does not matter if your partner initiates the contact or says that they would like to talk to you. The court order is in place and it says you are not allowed to contact the other person. It is important that you connect with a criminal defence lawyer quickly to start getting advice about how you should proceed in your case.
Along with the conditions, there is a first court date on the paperwork that the police give you. You are required to appear in court unless you have hired a criminal lawyer and the lawyer confirmed that you do not need to attend. As well, there may be a date for you to complete fingerprinting and photographs at the police station if the police did not complete these things at the time of your arrest. If you do not attend to the police station on time for this, you can be charged with a new criminal offence and a warrant can be issued for your arrest.
How do you win a domestic violence case?
Does domestic assault go on your record?
Many people who are charged with a domestic violence offence have never been arrested before. This means that they often have a lot of questions about what will happen in their case. The best thing to do is arrange a meeting with a defence lawyer who can help answer all of your questions and start working on your case. If you haven’t needed to hire a criminal defence lawyer before, you can read a previous post I wrote, called, “Finding the Best Criminal Lawyer - Is Your Lawyer Legit or Full of It.”
In my opinion, a “win” on a domestic assault case is where the client can walk away without a criminal conviction or a criminal record. For most people, that is the top priority and secondary priorities may include avoiding a jail sentence or having the matter dealt with as quickly as possible. This means that my first approach is to see if there is a way to have the Crown Attorney agree to drop the charges, because that guarantees the client will not get a criminal record. I think it is also important to tell my clients what a Diversion program is, how it works, and whether or not they would be eligible for it. In some cases, we have to proceed to a trial where a Judge decides if the Crown Attorney has proved the offence beyond a reasonable doubt. However, most cases in the justice system are worked out without having to go to a trial.
Just because a person has been charged with an offence, it does not mean that they are guilty and it does not mean they have a criminal record. The way a person would receive a criminal record is if they plead guilty, or are found guilty after a trial, and the Judge imposes a sentence such as a suspended sentence with probation, a fine, or a jail sentence.
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About the author
Michael Dyck is a partner at Rees Dyck Rogala Law Offices. He represents clients primarily from Winnipeg, Steinbach, and rural Manitoba. He has extensive experience helping people charged with criminal offences and focuses on building legal strategy with clients.