Domestic assault offences, and in particular, domestic violence offences, are some of the most common charges dealt with in Alberta criminal courts. Allegations of family violence involve all types of relationships, all age groups, and all walks of life. Police and Crown prosecutors take allegations of domestic violence very seriously, and many people find themselves before the courts for the first time as a result of an allegation of domestic violence.
Most often, when people refer to “domestic violence” they are talking about “spousal violence,” i.e., allegations that one domestic partner (for example, a husband, common law spouse, or boyfriend) assaulted the other partner (for example, a wife, spouse, or girlfriend). The broader term “family violence” is also sometimes used, however, and whenever there is an allegation that one family member has committed an offence against another family member, the charge is likely to be handled by the police and by the courts in a similar way. For example, if a parent is charged with assaulting his or her child, the allegation will likely be handled by the same prosecutors and the same courtroom as an allegation of spousal violence.
The most common criminal offence involving family members is “assault.” Generally speaking, an assault is any non-consensual physical contact between two individuals. The contact can be direct (e.g., striking someone with a fist) or indirect (e.g., throwing something at the person). If an object is used, a person may be charged with “assault with a weapon,” and if injuries result, a person may be charged with “assault causing bodily harm” or “aggravated assault.”
Even if there has been physical contact between two people, there are defences to assault. The most common “defence” is consent. If two people agree to fight one another, and if bodily harm is not intended or caused, then the physical contact between the parties may not be an assault. A person may also have used physical force in self-defence or to defend a third party; these can also be defences to a charge of assault.
“Domestic” offences include more than just assault, and may not involve any physical violence at all. Even if offences involving family members do not involve physical violence, they will often be handled in a similar way by police and the courts. Some other common offences that may involve family members include:
- Unlawful confinement (e.g. physically preventing a family member from leaving a residence),
- Mischief (e.g. intentionally damaging a family member’s property),
- Uttering threats (e.g. threatening to kill or physically harm a family member),
- Sexual assault (e.g. non-consensual physical touching of a sexual nature), and
- Criminal harassment (e.g. stalking a person by repeatedly following them from place to place) and making harassing telephone calls.
WHAT DO POLICE DO WHEN THERE IS A COMPLAINT OF DOMESTIC VIOLENCE?
Police officers often have limited discretion when they are deciding whether to lay charges. Many police services have formal or informal policies that require charges to be laid whenever a family member tells the police that they have been assaulted by another family member. As a result, when there is an allegation of domestic violence, the accused person will usually be arrested by police, and will usually be charged.
Although the police may ask the family member whether they are interested in proceeding with charges, ultimately, it is not the family member’s decision whether charges are laid. It is up to the police whether the person is charged, and it is up to the Crown prosecutor whether the charges proceed in court. The police can lay charges even if the family member does not want charges to be filed.
WHAT HAPPENS TO SOMEONE AFTER THEY ARE ARRESTED FOR DOMESTIC VIOLENCE?
When a person is arrested and the police decide to proceed with charges, the police have two options:
- The police can release the person in exchange for the person signing a piece of paper called “Promise to Appear,” where the person promises to appear in court at a later date, or,
- The police can decide to hold the person for a bail hearing in front of a judge or a justice of the peace (JP).
If a person is released on a Promise to Appear, the officers may also require that the person sign an “Undertaking to an Officer” in exchange for being released from custody without having a bail hearing. When a person signs an Undertaking, it imposes legally binding conditions on the person. For example, the Undertaking may prohibit the person from returning to their family home, or prohibit the person from consuming alcohol.
If a person has a bail hearing in front of a justice of the peace, the police will tell the JP whether the police want the person to be held in custody, or whether they simply want the person to be released on certain conditions. For most minor cases of domestic violence, where the person does not have a criminal record or any outstanding charges, the police will tell the JP that the person should be released, but on certain conditions.
If the police are opposed to release, the JP will decide whether or not the person should be released or held in custody. In most cases, the accused also has the option of delaying his or her bail hearing and having a bail hearing in front of a Provincial Court judge instead of a hearing in front of a JP. The person will be held in custody until they have a bail hearing. This can sometimes be a good option if the police are opposed to release and the accused wants a chance to discuss the case in detail with a lawyer before having a bail hearing.
If the JP decides to release the person, the JP will then decide if there are any conditions the person must follow when they are released. In a domestic violence case, it is common for the JP to impose conditions that prohibit the person from returning to the family home, contacting the family members involved in the incident, consuming alcohol, or possessing weapons. The JP will also decide whether the person needs to post cash bail before they are released. If cash bail is required, a person is not released until the bail money is deposited with the bail hearing office.
In Alberta, bail hearings in front of justices of the peace take place 24 hours a day, seven days a week, 365 days a year, by telephone or video link between the police station and a bail hearing office in Edmonton or Calgary. For almost all offences, the police must take a person before a JP for a bail hearing within 24 hours of their arrest. Unfortunately, it is not unusual for it to take 12 to 18 hours to have a bail hearing in front of a JP. As a result, if the police arrest a person for a domestic violence incident and hold them for a bail hearing, it may be many hours before they are released, and they may be kept in police cells overnight.
WHEN IS A “NO-CONTACT CONDITION” IMPOSED, AND HOW CAN IT BE REMOVED?
When there is an allegation that one family member has committed an offence against another family member, a “no-contact” condition is almost always put in place. These orders usually prohibit the accused from having any contact or communication, directly or indirectly, with certain family members. There is often also a condition that the person must not return to the family home. The accused is usually allowed to return on one occasion, in the presence of a police officer, to retrieve their property.
A “no-contact” condition often prohibits both contact in person (e.g. meeting in a public place) and contact via telephone, email, or text message. In addition, these orders will often prohibit indirect contact, which includes asking a third party to pass messages between the accused and the complainant.
It is a criminal offence for a person to violate a “no-contact” condition. If the police become aware that an accused person is violating this condition, the accused will usually be arrested. The police may then tell a JP that the accused should be denied bail and held in custody until their matters are dealt with through the courts. This could result in a person remaining in custody for several months.
Obviously, a “no-contact” condition can be very disruptive to a person’s life. Even relatively minor charges can turn a person’s life upside down, requiring them to cut off contact with their family and find a new place to live. As a result, one of the first questions that accused persons and family members ask is whether a no-contact condition can be changed.
It is possible to ask a court to remove the no-contact order. It usually takes some time to arrange these applications and it can often take as long as a few weeks. If the accused has a lawyer, the accused’s lawyer can make arrangements to apply to the court to change or remove the no-contact condition. Before changing a no-contact order, the prosecutor and the court will consider the following issues:
- What was the nature of the allegations? The more serious the allegations, the more concerned the court will be about allowing contact.
- Does the family member want to have contact with the accused, and does the family member feel safe having contact with the accused?
- Does the person have a record for assaulting, threatening, or stalking a domestic partner or anyone else?
- Does the person have a history of violating court orders or no-contact conditions?
- Has the person done anything to address any alcohol or drug issues, mental health issues, or relationship issues?
- Does the person have access to firearms or any other weapons, and has the person ever threatened to use them?
- Does the family member understand their legal rights and responsibilities, and has the family member received advice about their rights?
THE POLICE WANT TO SPEAK WITH ME ABOUT A DOMESTIC OFFENCE, AND THEY WANT ME TO COME DOWN TO THE STATION FOR A “MEETING.” WHAT SHOULD I DO?
If you are being investigated for a domestic violence incident, you should always speak with a lawyer before discussing the allegations with police – even if you are completely innocent, even if the police have not yet laid charges, and even if there is “another side to the story.” A lawyer can give you important advice about your legal rights and responsibilities before you make a decision that could affect your ability to defend yourself.
WHAT IF THE COMPLAINANT OR VICTIM WANTS TO “DROP THE CHARGES”?
A person who has claimed that they have been assaulted by a family member is referred to as the “complainant.” Sometimes, the complainant wants a person arrested or charged with an offence, but later on wants to “drop the charges.” In other cases, the complainant never wants charges laid, but the police decide to lay charges based on the information they have learned from the complainant or from other witnesses.
It is important to understand that it is not the complainant who charges the accused, even if the complainant was the person who called the police. Technically, the charges filed by Her Majesty the Queen (i.e. the government) against the accused. Because it is not the complainant who “presses charges,” only a Crown prosecutor can decide to withdraw the charges.
A complainant is certainly allowed to tell the Crown prosecutor that they want the charges dropped. But the prosecutor may refuse to withdraw the charges, even if the complainant does not want the charges to go ahead. A prosecutor may decide that it is in the public interest to prosecute the accused even if the complainant wants the charges withdrawn.
IF I AM A WITNESS OR COMPLAINANT IN A DOMESTIC VIOLENCE MATTER, DO I HAVE TO COOPERATE WITH THE POLICE OR THE CROWN PROSECUTOR?
This is a complicated issue. Witnesses have some legal obligations. For example, if a person is properly served with a valid subpoena to attend court as a witness, they are legally obligated to attend court to testify. On the other hand, a witness may not have any obligation to give a written or oral statement to a police officer.
In order to fully understand their legal rights and responsibilities, complainants should consider obtaining independent legal advice (from a lawyer who is not involved in defending their family member). The lawyer who represents the accused family member generally cannot give any legal advice to the complainant because this would be a conflict of interest, but they often refer the complainant to another independent lawyer who can give them advice.
WHAT HAPPENS IN COURT AFTER A PERSON IS CHARGED WITH A DOMESTIC VIOLENCE OFFENCE?
At the person’s first court date, the judge will want to know if the accused is pleading guilty or not guilty, or needs more time to review the case and speak with their lawyer. Most accused need more time and are not prepared to enter a plea on their first court appearance. If the person needs more time, the case is usually adjourned a few weeks to give the person more time to consider their position. If the accused has hired a lawyer, the lawyer can usually attend these preliminary appearances on their client’s behalf.
The accused’s lawyer will also receive “disclosure” from the Crown Prosecutors’ Office. “Disclosure” is all of the information that the police and prosecutor have that could be relevant to the charges against the accused. In a domestic violence case, this will often include a copy of any police notes or police reports, as well as any written, audio-taped, or videotaped statements taken by the police. Once the lawyer has reviewed the disclosure and discussed it with the accused, the accused will decide whether to plead guilty or not guilty.
If the accused wants to plead guilty, the accused will need to come to court with his or her lawyer and confirm that they want to plead guilty. The Crown prosecutor will tell the judge about the circumstances of the offence. Then the accused’s lawyer can tell the judge anything that might help the accused receive a more lenient sentence. The judge will then decide on a sentence. Sometimes, it is possible for the accused’s lawyer and the prosecutor to come to an agreement about a possible sentence in advance of pleading guilty, and suggest the same sentence to the judge. If the prosecutor and the accused do not agree on a sentence, each side will explain why it thinks its proposed sentence is more reasonable.
If the accused pleads not guilty, the charges will be set down for a trial. The accused must attend his or her trial. Trial dates can be many months down the road. While in theory a trial could take place as sort as six weeks after the first court date, in some courthouses in Alberta it can take up to a year to find enough court time for a trial. In Edmonton, most low complexity domestic violence trials are held between three and six months after the first court appearance. Unless a person applies to the court to change their release conditions (e.g. a no-contact order), these conditions will stay in place until the charges are resolved after a trial.
At a trial, the prosecutor will attempt to prove beyond a reasonable doubt that the accused committed the offences charged. The prosecutor will first call witnesses to try to prove the offence. Usually, the complainant and investigating police officers will be called as witnesses by the Crown. The lawyer for the accused will have an opportunity to ask questions of these witnesses. Once the prosecutor has called all of the Crown witnesses, the accused also has an opportunity to call witnesses to testify. The accused himself or herself can choose to testify, but does not need to do so. The prosecutor will also be able to ask questions of any witnesses called by the defence.
Once both sides have called their witnesses, the judge will decide whether the accused is guilty or not guilty. If the judge finds the accused guilty, the lawyers will then tell the judge what sentence they think the person should receive. If the judge finds the accused not guilty, the accused is free to go, and will not receive a criminal record as a result of that charge.
WHAT ARE THE POSSIBLE SENTENCES FOR A DOMESTIC VIOLENCE OFFENCE IF AN ACCUSED IS FOUND GUILTY OR PLEADS GUILTY?
Depending on the nature of the incident and the injuries (if any) to the victim, sentences for domestic violence offences range from a fine, to a period of probation, all the way up to lengthy jail sentences. Every case is different and depends on its own facts.
Courts treat domestic violence offences seriously. Parliament and higher courts have told sentencing judges that they must treat a domestic relationship as a “relationship of trust,” which is an aggravating factor when imposing a sentence. This means that punishments for domestic violence offences will often tend to be more severe than punishments for similar offences where the offender and victim were not in a relationship of trust. It is not unusual for prosecutors to ask for jail sentences in cases of domestic violence.
If a person receives a period of probation, the judge will impose certain conditions on the person for the term of that probation. Common probation conditions include the following:
- To report to a probation officer, and to continue reporting to a probation officer as required by the probation officer,
- To not have any communication or contact, directly or indirectly, with the victim (subject to any exceptions that might be added, such as contact in public or over the phone),
- To attend a domestic violence counseling program (such as the “Changing Ways” program),
- To abstain from possessing or consuming alcohol, and,
- To perform a certain number of community service hours.
A conviction for a domestic violence offence will leave the accused with a life-long criminal record, unless the person later receives a criminal record suspension (formerly known as a pardon). A criminal record may affect the person’s ability to travel to other countries, and may show up on a criminal record check performed by potential employers.
WHAT IS A “PEACE BOND,” AND WILL THE PROSECUTOR WITHDRAW THE CHARGES IF THE ACCUSED ENTERS INTO A “PEACE BOND”?
For some less serious cases of domestic violence, where it is not in the public interest to proceed with charges, the Crown prosecutor may agree to withdraw the criminal charges against the accused if the accused agrees to enter into a “peace bond.”
A peace bond is a court order that requires a person to “keep the peace and be of good behaviour,” for a specified period of time. In some cases, a peace bond will also order a person to comply with other conditions. The conditions can be very similar to the conditions of a probation order. For example, there could be a condition that the person must not have any contact with the complainant for a period of time, or a condition that the person must attend domestic violence counseling.
Breaching the terms of a peace bond is a criminal offence and can lead to criminal charges. In addition, breaching a peace bond comes with a financial penalty, and can result in the person owing money to the government as a result of the breach.
The major advantage of a peace bond is that, because the person does not need to plead guilty to a criminal offence, the person does not receive a criminal record. While a peace bond may show up on certain kinds of “enhanced” police background checks (for example, a “vulnerable persons check”), it is not entered into the national criminal record database.
It is important to remember that a Crown prosecutor does not need to offer an accused a peace bond. It is entirely within the discretion of the prosecutor whether they are willing to offer a “peace bond” to resolve a domestic violence charge. The accused’s lawyer cannot make the prosecutor offer a peace bond. A peace bond is usually offered only in relatively minor cases, and even then, only when the prosecutor is satisfied it is in the public interest to do so. It is not unusual for the prosecutor to refuse to resolve a domestic violence file with a peace bond and insist that criminal charges proceed. A lawyer can give advice about whether a peace bond is a realistic option for an accused.
WHAT IS AN “EMERGENCY PROTECTION ORDER”?
In Alberta, the Protection Against Family Violence Act allows a family member to apply for an Emergency Protection Order (“EPO”). An EPO is a form of “restraining order.” A judge or justice of the peace can grant an EPO if they are satisfied that “family violence” has occurred. “Family violence” includes:
- An intentional or reckless act or omission that causes injury or property damage and that intimidates or harms a family member,
- An act or threatened act that intimidates a family member by creating a reasonable fear of property damage or injury to a family member,
- Forced confinement,
- Sexual abuse, and,
A family member can apply for an EPO without giving any notice to the other family member. If a JP or judge decides that an EPO should be issued, the JP will direct that the other family member be served with a copy of the EPO. Usually, it is the police who will serve the other family member with a copy of the EPO. The JP will also decide on what conditions will apply to the EPO. Among other things, an EPO can prohibit a family member from having contact or communication with other family members, and can prohibit the family member from staying at or going near the family home.
Once a person is served with an EPO, they are legally required to obey the terms set out in that order. If a person breaches the terms of an EPO, they can be arrested and charged with an offence.
After an EPO is issued, the EPO must be reviewed at a review hearing in the Court of Queen’s Bench. At the hearing, a judge will decide whether the EPO should be confirmed or overturned. The review hearing date will be printed on the EPO, and a review hearing must take place within 9 working days of when the EPO was granted. If a person wishes to object to an EPO and attempt to have it overturned, they should consider consulting with a lawyer for advice about how to do so.
An EPO is separate from any criminal charges and involves separate processes. Often, if the police decide to proceed with criminal charges against a family member, a complainant will not need to apply for an Emergency Protection Order because the accused will already be prohibited from contacting the family member under the terms of the criminal release conditions.
QUESTIONS ABOUT DOMESTIC VIOLENCE?
If you have been charged with an offence involving a family member, domestic assault, or if the police have asked to speak with you about a domestic violence allegation, you should receive legal advice immediately. If you would like to speak with a lawyer with extensive experience handling domestic violence cases at Pringle Chivers Sparks Teskey, please contact our office at (780) 424-8866.