Domestic violence is treated very seriously by the courts. When a domestic assault charge is laid it is classified and prosecuted differently than other charges. Offences will be classified as “domestic” in nature if it involves an allegation made in the context of a marriage, common law or dating relationship, or if made by another relative or family member.
The most common question I encounter in my practice by those facing domestic assault charges is:
Can My Spouse/Girlfriend Drop the Charges?
The short answer to the question is “no”. The short answer to the question is “no”. After the police have laid the charge, the decision to proceed is not up to the alleged victim (often referred to as the complainant) but the Crown attorney. The Crown Policy Manual provides that Crowns should “exercise caution in evaluating requests from the victim for the withdrawal of charges.” Similarly, if the complainant does not show up on the trial date, the charges do not automatically get dropped either. This is a very common misconception. In fact, in some cases the Crown can seek to adjourn (put off) the trial to make the complainant attend whether they want to or not and they can also apply to the judge for a warrant for their arrest.
The second most common question I encounter from those facing domestic assault charges is:
Can I Get My Bail Conditions Changed So I Can Resume Contact with My Spouse/Girlfriend?
Again, the short answer to the question is generally “no”. Most bail orders have conditions that do not permit any contact directly or indirectly with the complainant pending the outcome of the case. In fact, some bail orders also have a radius restriction which prevents you from going within a specified distance of the complainant. It is important to keep in mind that indirect contact includes sending messages through third parties, telephone calls, e-mails, and the like.
If you do not abide by the conditions of your bail you can be charged with a further offence of failing to comply. This will typically result in your being re-arrested, charged with a new offence and held for another bail hearing. At this hearing the Crown may be opposed to your release and seek to cancel your previous bail order. Your surety will risk of losing the money they pledged on your behalf if you are convicted of failing to comply with a bail order.
If you and your spouse/girlfriend wish to have contact with each other pending the outcome of your case the proper thing to do is to have counsel seek a bail variation. This can be done in one of two ways. The easiest way to get a bail variation is with the consent of the Crown Attorney. In most jurisdictions, bail variation paperwork is completed outside of court and requires the signature of the Crown Attorney, your surety, and yourself. It is important to keep in mind that a justice has to sign off on the variation. It is also advisable that you keep the bail variation paperwork in your possession at all times so you can demonstrate to a police officer that your bail has been properly varied upon request.
If the Crown does not consent to a variation of your bail, an application has to be made to the Superior Court to vary your bail order. This is more complicated and generally requires ordering transcripts from your original bail hearing and putting together written material to be filed with the Court in advance. After the paperwork is filed there is a hearing in Superior Court before a judge to determine whether the conditions should be varied or remain the same pending the outcome of your case.
It is important to retain experienced counsel when facing an allegation of domestic assault to assist you with you navigating through the criminal justice system. Counsel can assist you in obtaining a bail variation where appropriate, and meet with the Crown about your case to see if a criminal record can be avoided.
Michelle Johal Practices Exclusively In The Area Of Criminal Law.
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