What you need to know about domestic assault charges
by Tushar K. Pain
Introduction
“Domestic cases” are those that involve allegations of violence or threats of violence between family members. Although there are many situations in which charges of a domestic nature can arise, the most common example is one in which a man is charged with having assaulted or threatened his female partner (girlfriend or spouse).
The Incident
In many cases, domestic-type charges arise from either an argument or a physical confrontation between spouses. In many of these situations, the woman will call “911” to make a complaint about her husband’s behaviour towards her. This may involve an allegation of violence or threats towards her. In response, the police will be sent to the home to investigate the matter. Usually, two police officers arrive on the scene. One interviews the female while the other talks to the male. An allegation of criminal behaviour by the wife typically results in the arrest and charging of the husband.
The Arrest
The husband is placed in handcuffs and taken to the police station. Although the police have the discretion to process the husband and release him from the station, this is rarely done. Instead, the husband is detained in custody until he can be taken to court for a bail hearing. The bail hearing may take place the same day, the next day, or even several days later. Two typical conditions of release are 1) that the husband not communicate either directly or indirectly with his wife and 2) that he not attend the home address (this is usually where the wife is staying). This latter condition can be placed on the accused by the court even in a situation where the accused is the sole legal owner of the property. This means that he will have to find another place to live until the matter is concluded. To get this or any other bail condition changed, an application for a bail review must bebrought in the Superior Court of Justice. In some instances the Crown may be persuaded to consent to a variation in the bail. This will obviate the need for a bail review application.
Difficulties regarding bail conditions should be discussed with a lawyer. A diligent lawyer will aim to understand the concerns of the client, educate the client about what options are available, outline the timelines, costs, and procedures involved, and recommend a course of action.
The Investigation
Following the police interview of the wife at the home, several things may happen. If there appear to be any physical injuries, they may be photographed by the police. The wife may be asked by the officer to review and sign a written statement or she may be asked to attend the police station to give an audiotaped or videotaped statement.
Trying To Get The Charge Withdrawn
The wife may have called the police under the mistaken belief that they would come to the house to mediate (what she considers to be) a marital dispute or scare some sense into her husband. When she realizes that he is being arrested and will not be allowed to return to the house, often times regret sets in. Believing that it is her complaint to withdraw, she may try to recant her statement or withdraw the charges. Finding that the police will not withdraw the charges, she may even attend court to speak to the Crown or someone in the Victim Witness Program. Her request to have the charges withdrawn will be unsuccessful and she may be exposing herself to criminal charges. Once laid, “domestic charges” will rarely be withdrawn by the Crown. Faced with these circumstances, a complainant (the wife) wishing to have the charges withdrawn should consult her own lawyer regarding an appropriate course of action.
Timelines
Usually the only “quick way out” of this type of situation for an accused is through a guilty plea. Otherwise, “domestic charges” can often take months to wind their way through the court system. This often means that families will be apart for long periods of time. Where there is a desire to reconcile, legal representation should be sought at the earliest possible stage to avoid unnecessary delay and hardship. A good lawyer will be able to take appropriate action to ensure that the case moves ahead as quickly as possible.
The Trial
The accused should write down everything that occurred as soon as possible to prepare for a potential trial. This will help preserve his memory of the events. If he has suffered any injuries as a result of the incident, he should have these properly documented and photographed. The police should not be relied upon to document and photograph injuries of the accused.
At trial, the complainant will usually be called as a witness by the prosecution to prove the case against the accused. In some situations the witness may testify to a different set of circumstances than that complained of to the police. Alternatively, the witness may testify that she has forgotten what happened. In either situation this will likely result in the Crown making an application to the court to have the witness declared a hostile witness or to have other previously recorded evidence admitted against the husband.
The complainant may not be present at the trial for various reasons. Depending on the circumstances of the case, sometimes this will work in the accused’s favour and sometimes it will not.
At the conclusion of a trial there will usually either be a finding of “guilty” or “not guilty”. A finding of “not guilty” ends the matter and the accused person is free to resume his life as it was before the charge. A finding of “guilty” is followed by the sentencing process. Sentencing may or may not result in jail time. It will, however, usually result in some period of probation. Probation orders typically include conditions that require the accused to attend some form of counselling and not to have any contact with the complainant except with her written and revocable permission.
Facing a “domestic charge” can be an overwhelming experience. An understanding of your situation is crucial dealing with the problem in an effective manner.
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