Family Violence and the Criminal Code

The Criminal Code

The Criminal Code, RSC 1985, c C-46 is the main federal legislation on criminal law. There is no specific crime of family violence in the Criminal Code, but an act can be both a criminal offence under the Criminal Code and an instance of family violence under the Family Law Act. There are many criminal offences that could apply where there has been 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 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
• 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 arson is to a home that people live in.

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
• abandoning child
• criminal negligence

If your partner or ex-spouse commits a crime against someone other than you or your children, this may not be family violence, but it could still impact your family law matter. For example, criminal convictions against them could influence orders respecting parental responsibilities, parenting time, and contact with children.

The criminal process

The criminal 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. Police will assess the report and may open a police file and investigate. Investigations typically involve interviewing the complainant, interviewing witnesses, and assessing a crime scene.

It's important to note that a victim of a crime in a criminal proceeding has 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, who works for and represents the state (i.e. the government). These people are also called Crown prosecutors since they are the government lawyers who prosecute criminal offences. An accused under criminal law is being prosecuted for a crime against the state, so Crown counsel is the one in control. The victim of the crime is a witness in the state's case against the accused. While some police or Crown counsel may ask a complainant for their opinion, the ultimately decision about how the case proceeds will be made by Crown counsel. This extends to cases where police and Crown counsel are prosecuting a breach of a family court protection order. As a witness, the victim might be the complainant, but they have no representation in the court (except in very specific circumstances).

In some circumstances, the police will immediately come to the crime scene and may arrest a suspect. 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 and send it to crown counsel. Among other things, the Report to Crown Counsel describes witnesses’ statements and recommends if charges should be laid. Crown counsel decides whether there is enough evidence to lay charges. If they think there is enough evidence, crown counsel will approve the charges and begin the criminal court process.

Depending on how the process of investigation, arrest, and charges 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.

If released into the community until trial, an accused person will normally be on conditions to not contact or communicate with the complainant and other witnesses until their charges are completed. Additionally, the release conditions may require that they:

• surrender or not possess firearms and/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
• not contact the complainant or the children, directly or indirectly
• fulfill any other conditions that may be necessary for the safety of the complainant and the children

The criminal court process takes time. 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 scheduled.

Outcomes for criminal cases

There are three general paths that criminal cases can take. The first is when the charges are withdrawn (permanently dropped) or stayed (put on hold, often indefinitely) by Crown counsel. This happens when the Crown counsel no longer thinks they can prove the offence or they have decided it is not in the public interest to proceed. The second path occurs when the accused pleads guilty. This is when the accused person agrees that they committed a crime. Guilty pleas often involve the accused making an agreement with Crown counsel to proceed on fewer or less serious offences and may also include an agreement that both Crown counsel and the accused will ask the judge to order the same sentence. The third path is going to trial, which happens when the accused person denies that the crime happened. At a trial, Crown counsel must prove to the court that the accused person committed the crime.

If the accused person pleads guilty or is found guilty after a trial, a judge will determine what sentence should be applied. The sentencing hearing does not always happen on the same court date as the trial or guilty plea. What sentence a judge chooses will depend on the circumstances of the offence and any past record of conduct related to the offence. Because offences related to family violence cover a wide range of circumstances, the sentences for family violence cases can be very different.

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

• a discharge, which can be absolute or be accompanied by certain conditions; as long as any conditions are successfully completed no conviction is registered
• a suspended sentence, with conditions, which means a period of probation, and a criminal conviction
• a conditional sentence, which generally means house arrest
• a jail sentence
• a fine, which may also be combined with a jail sentence

A finding of guilt normally results in a criminal record that will impact a person even after the sentence is complete. Criminal records can restrict employment, prevent someone from volunteering, 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 BC 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 BC 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
• help accessing information about and applying for financial benefits, if eligible

Victim services are either run by the police (police-based victim services), or run by community organizations, (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-based and community-based victim services if you have reported 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 domestic 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 domestic violence, there are some good reasons to make reports as soon as possible. These include:

• 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 actions to protect you
• Evidence is often easier to gather close to an incident
• 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 they may believe you are untruthful

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

Changing no-contact release conditions

It is important to remember that release conditions 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 your partner doesn't follow the terms of their recognizance or undertaking, you may call the police or you can contact community-based victim services to assist you if you choose to report the breach.

Many parties may want to be able to communicate with each other despite criminal charges. Sometimes it is necessary for arranging parenting or sometimes people want to receive help during a difficult situation but never wanted to end their relationship. You cannot change the terms of your partner's recognizance or drop the charges yourself, only a judge can do that. If you want your partner’s release conditions changed, you may speak to Crown counsel. If you contact your partner without changing the conditions, you could be complicating the situation by inviting them to break the terms of the recognizance. This can result in further criminal charges against your spouse. 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 remains paramount in this process.

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 will be limited in the information they can give you. This can be because of privacy considerations and because you are a witness. Crown and police 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 your ex-partner is released on. If you have a lawyer for family court, give copies of these documents to them.

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 your ex-partner’s court dates, but in cases where there are no-contact conditions or a protection order, it can be better to not attend. Many courthouses are small and poorly set up to keep complainants and accused persons separate. There may only be one waiting room and limited 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.

If the criminal charges are not pursued

There is a good chance that Crown counsel or the police will choose not to proceed with the criminal charges. There are many reasons that criminal charges are not pursued, and many of them do not have anything to do with whether the incident happened or not.

If you have concerns for your safety, or the safety of your children, it can be a good idea to get a family court protection order, even if your ex-partner is subject to criminal court conditions. Crown counsel may decide not to pursue the charges against your ex-partner, 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 also important to remember that you can apply for a family law protection order even if police do not investigate, or Crown counsel do not lay charges.

Information for accused persons

It is the policy of the provincial Ministry of Justice that incidents of spousal assault are to be treated as significant crimes. As a result, if your partner or another person makes a report to the police about domestic 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.

Typically, bail conditions include:

• not to have contact with the person you are charged with harming, either directly or indirectly
• not to go to their home, school, or workplace
• to 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.

Resources and Links

Legislation

• Criminal Code, RSC 1985, c C-46

Links

• Dial-A-Law Script "Peace Bonds and Assault Charges"
• Justice Education Society's fact sheet "Recognizance under s. 810 (Peace Bond)"
• 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 Services Society's booklet For Your Protection: Peace Bonds and Family Law Protection Orders

This information applies to British Columbia, Canada. Last reviewed for legal accuracy by Fiona Beveridge and Samantha Simpson, April 30, 2019.

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.