Family Violence and the Criminal Code

The Criminal Code

The federal Criminal Code is the main legislation on criminal law. There is no specific crime of family violence in the Criminal Code, but there are many criminal offences that could apply in the context of family violence, including:

• assault, including common assault, assault with a weapon or causing bodily harm, and aggravated assault,
• sexual assault, including common sexual assault, sexual assault with a weapon or causing bodily harm, and aggravated sexual assault,
• murder and attempted murder,
• criminal harassment, including stalking,
• uttering threats,
• offences related to firearms,
• trespassing, including trespassing at night,
• unlawful confinement (restraining someone against their will),
• kidnapping,
• distribution of intimate images,
• conveying false information with intent to injure,
• mischief (destroying or damaging property),
• cruelty to animals,
• arson, and
• financial offences including theft, misappropriation of money held under direction, extortion, forgery, or fraud,

Offences against property like arson and mischief can occur even where a person is damaging their own property, for example when a home that both people live in is damaged because of arson.

Family violence committed against the children of a relationship may also result in criminal charges. Some charges more commonly involving harm to children are:

• failure to provide necessities of life,
• kidnapping,
• abandoning a child, and
• criminal negligence.

If your ex commits a crime against someone other than you or your children, that crime may not constitute family violence under the proivincial Family Law Act or the federal Divorce Act, but it could still impact your family law dispute. Your ex's criminal conviction, for example, could have an impact on orders about parental responsibilities, parenting time, and contact with children.

Criminal cases and the criminal court process

The criminal court process starts with a report being made to police. A report can be made by a victim of a crime, or a witness to a crime. The police will assess the report and may open a police file and investigate. Investigations typically involve interviewing the complainant, interviewing witnesses, and examining the crime scene.

It's important to note that a victim of a crime in a criminal proceeding has much less control over the process than a survivor of family violence does in a family court. A survivor of family violence in a family law case decides whether or not to ask for a protection order in family court. In a criminal process, decisions are made by crown counsel, lawyers who work for and represent the state, and are responsible for prosecuting criminal offences. While some police or crown counsel may ask a complainant for their opinion about things, the ultimate decision about how the case is managed will be made by crown counsel.

In some circumstances, the police may come to the crime scene immediately and arrest the suspected offender. In other cases, where the crime has already happened or there is no immediate danger, the police may take longer to investigate or make an arrest. If there are children present or involved in the alleged offence, the police will typically notify child protection services, who may also intervene.

After the police have conducted their investigation, they may prepare a document called a Report to Crown Counsel. Among other things, this report describes witnesses’ statements and recommends whether criminal charges should be laid. Crown counsel decides whether there is enough evidence to lay charges. If they think there is enough evidence, the charges will be approved, beginning the criminal court process.

Depending on how the processes of investigation, arrest and charging unfold, an accused person may be arrested and held in custody while the criminal matter is being decided, or they may be arrested and then released into the community on conditions, usually called an undertaking or recognizance, until the criminal matter is finished.

The criminal court process takes time, just like the civil court process. Typically the first court date is several months from the initial incident. The first court date is typically used to ensure that the accused person has information about the charges and evidence, to determine if they have a lawyer, and to schedule further court dates. There are often several “scheduling” dates before either a guilty plea is entered or a trial date is set.

Conditions of release until trial

If an accused person is released into the community until trial, their release will normally be on conditions to not contact or communicate with the complainant and other witnesses until the trial is completed. Crown counsel may ask for other release conditions, such as conditions that the accused person:

• surrender, or not possess, firearms or weapons,
• not go to the complainant’s home, school, or workplace,
• not go to the complainant’s children's school or daycare,
• not come within a certain distance of the complainant’s home, or
• not contact the complainant or the children, directly or indirectly.

The judge may impose any other conditions that are reasonably necessary for the safety of the complainant and any children.

Outcomes of criminal cases

There are three general paths that criminal cases can take. The first are when the charges are withdrawn (permanently dropped) or stayed (put on hold, sometimes indefinitely) by crown counsel. Charges may be withdrawn when the crown counsel no longer thinks they can prove the offence or they have decided it is not in the public interest to prosecute the case. Charges may be stayed if the accused pleads guilty and admits they committed a crime. Guilty pleas often involve the accused making an agreement with crown counsel to proceed on fewer or less serious charges, and may also include an agreement between crown counsel and the accused about the sentence they will ask the judge to impose..

The third path is going to trial, which happens when the accused person decides not to plead guilty. At a trial, crown counsel must prove to the court that the accused person committed the crimes with which they have been charged.

If the accused person is found guilty after a trial, or changes their mind and pleads guitly during the trial, a judge will determine what sentence should be imposed. The decision about sentencing is often made at a hearing that is scheduled after the trial. The sentence the judge chooses will depend on the circumstances of the offence, the range of sentences required by the Criminal Code for each charge, and any past record related to the offence. Because offences related to family violence cover a wide range of circumstances, the sentences imposed for family violence vary from case to case.

Some sentences that a person may face after a finding of guilt are:

• an discharge, which can be absolute or be accompanied by certain conditions, and as long as any conditions are successfully completed no conviction will be recorded,
• a suspended sentence, which means a period of probation with conditions imposed on the person's behaviour as well as a criminal conviction,
• a conditional sentence, which generally means house arrest with conditions imposed on the person's behaviour as well as a criminal conviction,
• a jail sentence, and
• a fine, which may also be combined with a jail sentence.

A finding of guilt normally results in the person having a criminal record that will impact them even after their sentence is complete. Criminal records can restrict employment, prevent someone from volunteering with community groups and charitable organizations, and limit a person's ability to travel outside of Canada.

In addition to the sentences outlined above, if crown counsel decides not to seek a criminal conviction and sentence, they may still ask the court to order a peace bond either under section 810 of the Criminal Code or the common law. A peace bond is a preventive order. It does not require proof that a crime has taken place, does not result in a criminal conviction, and it is not intended as a punishment. Instead, the crown must show that the complainant has a reasonable basis for fearing the accused person. The court will then order conditions to protect the complainant, often including orders prohibiting contact. If the person breaches the peace bond, they may be criminally charged for breaking a court order.

Information for those who have experienced violence

Victim services

As part of our criminal justice system the provincial government runs victim services programs. Victim services are available throughout the province to anyone who has been a victim of a crime, and can also provide support to family members and witnesses. You may feel that you need to leave the family home, or you may want to develop a safety plan in case your partner becomes violent again. A victim support worker can help you develop a safety plan or find a place to stay.

To get connected with a local victim services organization, call VictimLink BC at 1-800-563-0808 for assistance. VictimLink BC is a province-wide telephone help available free to people across British Columbia and Yukon 24 hours a day, seven days a week.

A support worker at VictimLink can either help you by providing:

• help understanding and dealing with the effects of a crime,
• safety planning,
• emotional support,
• referrals to other community agencies that can help,
• help understanding what happens in court and providing support and guidance through the court process, and
• help accessing information about and applying for financial benefits, if you are eligible.

Victim services are either run by the police, called police-based victim services, or by community organizations, called community-based victim services. You do not need to make a report to the police to access community-based victim services. You can access both police- and community-based victim services if you have made a report to police.

Making a report

If you choose to start the criminal process, the first step is to make a report to the police. Many people are hesitant to report family violence. People can be afraid they won't be believed or that it will make things worse. Connecting with community-based victim services through VictimLink can be a good way to help you understand the criminal process and feel supported when choosing whether to make a report to police.

In cases where you or your children are in immediate danger, it is important to phone 911 right away.

Though you do not need to immediately make a report to police after an incident of family violence, there are some good reasons to make reports as soon as possible:

• some criminal offences must be charged within 6 months of the incident,
• if you are in danger, making a police report may result in the police taking steps to protect you,
• evidence is often easier to gather close to an incident, and
• myths and stereotypes still exist in our system, and a late report may cause the police, crown counsel, or a judge to believe the reported violence is less serious or that you are being untruthful.

The criminal process will not begin until a report has been made to the police, whether by you or by another person.

Changing no-contact release conditions

It is important to remember that the release conditions set out in undertakings or recognizances are legally binding conditions that an accused person must follow. That means if they break their release conditions they can be arrested for breaching the terms of their release, which is a serious criminal offence. If the accused person doesn't follow the terms of their recognizance or undertaking, you can call the police or ask community-based victim services to help you report the breach.

Many people still want to be able to communicate with each other even though criminal charges have been laid. Sometimes people have to talk to each other to organize child care or parenting time. Sometimes the person who made a criminal report never wanted to end their relationship. It's important to know that you cannot change the terms of the accused person's recognizance or drop the charges yourself; only a judge can do that. If you want to change the conditions of the accused person's release, talk to crown counsel first. If you contact the accused person without getting their conditions changed first, you could be complicating the situation by inviting them to break the terms of their release. This can result in further criminal charges. It may also lead police to believe that you don’t really need protection and can lead to difficulty with enforcement of the conditions in the future.

If you are considering changing no-contact release conditions, talk with a community-based victim services worker to help ensure you and your children’s safety are protected.

Keeping updated on the criminal process

You can ask that the police and crown counsel keep you up to speed on the progress of the criminal case. Police and crown counsel are limited in the information they can give you, usually because of privacy considerations and because you are a witness. Police and crown counsel may direct you to victim services instead of communicating with you directly.

You should also ask for a copy of your statement and the recognizance that sets out the conditions of the accused person's release. If you have a lawyer helping you with a family law problem, be sure to give them copies of these documents.

Depending on the type of charges, you can also use the Court Services Online website to monitor the accused person’s upcoming court dates.

You can go to the accused person's court dates, but in cases where there are no-contact conditions or a protection order, it may be better to not attend. Many courthouses are small and not set up to keep complainants and accused persons separate. There may only be one waiting room and a limited number of sheriffs. Another consideration is that many court appearances are often not scheduled for a specific time, so you could be waiting all day to watch a quick adjournment with no new information being provided.

When charges are not pursued

There is a good chance that crown counsel or the police will decide not to prosecute the charges against the acccused person. There are many reasons that criminal charges are not pursued, and many of them don't have anything to do with whether the events giving rise to the charges actually happened.

If you have concerns for your safety, or the safety of your children, it can be a good idea to go to civil court and ask for a protection order under the Family Law Act, even if the accused person is subject to conditions from the criminal court. Crown counsel may decide not to pursue the charges against the accused person, and if the charges are withdrawn or stayed, any conditions that the accused person was required to follow will also come to an end.

It is important to remember that you can apply for a family law protection order even if police do not investigate, or if crown counsel does not lay charges.

Information for accused persons

British Columbia's Crown Counsel Policy Manual states that incidents of intimate partner violence are a "very serious, prevalent, and complex problem" that require a special response by prosecutors. As a result, if your partner or another person makes a report to the police about family violence, you may be arrested and you could be taken to jail overnight.

If this happens, you will appear before a justice of the peace or a judge for a bail hearing. If you are arrested on a Friday, this may mean that you will spend the weekend in custody, although provincial court judges are usually available by telephone or video link. At the bail hearing, the judge will normally require that you promise to follow certain conditions if you want to be released from custody. If you do not agree to abide by the terms the judge wants, you will not be released and will stay in jail until the hearing of the charges against you.

Bail conditions typically required you to:

• not contact the person you are charged with harming, either directly or indirectly,
• not to go to the person's home, school, or workplace, and
• keep the peace and be of good behaviour

Other conditions might include restrictions on your use of alcohol and drugs, a curfew, a requirement that you report to a bail supervisor or the police, a requirement that you not go within a certain number of blocks of the complainant's home, or a requirement that you not possess firearms or other weapons.

The judge's conditions will be written down in a document called a recognizance or an undertaking. It is critical that you follow the terms set out in your recognizance. If you don't, you can be arrested for breaching a court order, and face a criminal trial on that charge as well. The terms of your recognizance will remain in effect until the trial or until they are changed at a court appearance before trial.

Lawyers and your bail hearing

You have a right to contact a lawyer when you are arrested. Most importantly, you have a right to have a lawyer represent you at your bail hearing. Call one.

If there are family law proceedings in civil court, make sure that your family law lawyer is aware of your arrest and the criminal proceedings, especially if you have children.

Whether or not you have a criminal lawyer representing you, make sure you speak to duty counsel before your bail hearing. Duty counsel are lawyers paid by Legal Aid BC to give advice and provide limited help to people who have been arrested and do not have a lawyer. Duty counsel will usually try to speak to everyone who has been arrested before their bail hearing. However, if the number of people waiting in court cells for a bail hearing is high, you may not have very much time with them.

You will want to ensure that the terms of your recognizance are fair, not too restrictive, and don't interfere with your ability to see your children or go to school or work.

Under certain circumstances, you may not be released from custody, regardless of the conditions you're prepared to agree to. This will depend on factors such as the gravity of the alleged offence, any history you have of related criminal convictions, and the opinion of crown counsel given the circumstances of the alleged offence.

Getting back together

People sometimes want to back together, or even just talk about things, after an arrest has been made. Sometimes the complainant will decide that they want to "drop the charges." A couple of points need to be mentioned.

• Dropping the charges: Criminal charges are laid by crown counsel, not by the complainant. The complainant cannot drop the charges. Only crown counsel can do that.
• Communicating with the complainant: Do not talk to the complainant if your recognizance does not allow you to communicate with them, even if they contact you. No matter who initiates the contact, communicating with the complainant is still a breach of the terms of your recognizance and you may face criminal charges for that breach, as well as the other charges.
• Reconciling: If the complainant really wants to get back together with you, they must talk to crown counsel and ask that the terms of your recognizance be changed to allow you to communicate with each other or to share the same residence. There must be a hearing to vary the terms of the recognizance before those terms will be officially changed.

Parenting and criminal court orders

Criminal charges often make any previous parenting arrangements impossible to follow. Where criminal court and civil court orders conflict, parents typically follow the most recent order.

Even if the criminal charges don't result in conditions that force a change in parenting arrangements, the complainant may still seek legal advice about how to withhold parenting time or make changes to the parenting arrangement to reduce or stop the accused person's time with the children. The complainant may have safety concerns and not want parenting arrangements to stay the same, or the accused person might be living in a space where children cannot easily stay overnight.

Interruptions to children's parenting schedules resulting from criminal charges are often temporary. How people return to their usual parenting schedule can vary. For many people, the first step back to a schedule involves adjusting the conditions of the accused person's release to allow communications about parenting. Sometimes, the conditions of the accused person's release have a built-in plan for communications about parenting. It's important to talk to a lawyer about your specific situation.

Think about what's best for your family. You can think about talking directly, like in person, by telephone, by email or by text, or indirectly through a friend or relative. Maybe you have a friend who can help by passing messages or by transferring the kids between you and the other parent. Sometimes, there is no safe way to communicate or coordinate parenting.

Once you have an idea of what might work, remember that if there's any court order stopping you from talking to each other, the order needs to be changed first.

When communication is possible, the next step is to figure out whether your parenting plan needs to be changed because of safety or other practical issues. Here are some things to think about:

• Should the accused person's time with the kids be supervised?
• Should their parenting time be limited to daytime, with no overnights?
• If the accused person has had to leave the family home, do they have a good place to spend time with the kids?
• Can the kids be transferred between the parents without the parents meeting?

Sometimes criminal charges and restrictions are dropped all together, and parents can go back to how things were. Other times, there might be a finding of guilt, which changes how parents communicate with each other or care for their kids. Early in a criminal case, it's often hard to predict what parenting will look like in the future.

Resources and links

Legislation

• Criminal Code

Resources

• BC Prosecution Service's Crown Counsel Policy Manual

Links

• Clicklaw Common Question "What are my rights after arrest, and what might happen after?"
• Ministry of Attorney General's Community Safety and Crime Prevention Branch and Legal Aid BC's booklet For Your Protection: Peace Bonds and Family Law Protection Orders
• Rise Women's Legal Centre, Seeking a Peace Bond: A Guide (available in 12 languages)

This information applies to British Columbia, Canada. Last reviewed for legal accuracy by Kim Hawkins, Vandana Sood, Elizabeth Cameron, and Rosanna Adams, 16 June 2023.

JP Boyd on Family Law © John-Paul Boyd and Courthouse Libraries BC is licensed under a Creative Commons Attribution-NonCommercial-ShareAlike 2.5 Canada Licence.