What is Domestic Violence?
Often “domestic violence” is really “spousal violence,” which is an allegation that one domestic partner assaulted the other. This can include parties who are married, common law or in a sexual relationship but not cohabitating. By contrast, “family violence” is the term often used if the allegation is about one family member against another (e.g., a parent is charged with assaulting his or her child or a child assaults a sibling, parent or elder). Family violence allegations are handled by the same prosecutors and court as allegations of spousal violence.
The Impact of a Domestic Violence Charge
An allegation of domestic violence can be exaggerated, false, motivated by a relationship breakdown or a family court matter. Domestic violence charges are taken very seriously and charges have a great deal of social stigma attached. A conviction can typically result in nine to fifteen months of incarceration and be used against you in family court, including custody and access to your children. A conviction can also impact your employment and ability to travel outside the country. Many steps can be involved before a conviction may occur, however, and the job of an experienced defence lawyer is to build a strong defence case for you. A criminal defence lawyer in Grande Prairie, Alberta at Banks, Gubbins & Andrews Criminal Law will work hard to get the charges withdrawn or stayed and a conviction avoided or minimized.
Types of Domestic Violence Offences
Assault is the most common criminal offence involving family members and common assault is set out in s.265 of the Criminal Code. Injury is not required. Assault charges can entail any non-consensual physical contact, including hitting, kicking, pushing, pinching, grabbing, shaking, spitting, throwing and poisoning. A charge can be laid for “assault with a weapon” (i.e., hitting with an object), “assault causing bodily harm” (e.g., hitting led to a broken nose), or “aggravated assault” (e.g., hitting with intent to cause injury).
Assault of a sexual nature is also a criminal offence, including if a spouse or common law partner forces their spouse or common law partner to have sex or perform sexual acts against their will. A charge can be laid for sexual assault, sexual interference and/or invitation to sexual contact. These charges can be multiplied by the number of persons making the allegation (e.g., sexual assault x3 if three people are making the allegation).
Abuse is not limited to physical or sexual violence but can include emotional abuse, which is verbal behaviour that injures your security and/or personal dignity (e.g., insults, belittling, isolating a person from others). Uttering threats (e.g., threatening to physically harm or kill a family member, loved ones, pets or belongings) is a chargeable offence, as is forceable confinement (e.g., forcing someone to stay in bed or a chair for long time periods) and unlawful confinement (e.g., preventing a family member from leaving). Mischief (e.g., intentionally damaging a family member’s property) is another type of emotional abuse as is criminal harassment (e.g., stalking a person by following them and making harassing phone calls).
When Police are Contacted
When a spouse or family member contacts the police about a domestic or spousal violence matter, the police can decide to lay a criminal charge if they have reasonable and probable grounds to believe that a crime took place, is taking place or is about to take place. The police may ask a family member whether they are interested in proceeding with charges, but ultimately, it is not the family member’s decision and the police may lay charges even if the family member does not want charges to be filed.
The police may have limited discretion in deciding whether to lay assault charges as formal or informal policies may require them to lay charges when a family member says they were assaulted by another family member. Such policies eliminate potential control of the process by the accused or the victim, including recanting by the victim, which is not unusual if there is ongoing abuse. A no contact order may also be issued to keep the parties from communicating. Our lawyers in Grande Prairie can seek to vary a no contact order if those are your wishes and it is in your best interest legally (e.g., so you can access your children).
If charges are laid, it will be up to the Crown prosecutor to decide whether the charges proceed in court. The Crown counsel will first review the evidence and determine if there is any reasonable prospect of a conviction. Your Grande Prairie domestic violence defence lawyer can negotiate with the Crown prosecutor at any time and the parties can obtain their own resolution to the matter at any time before a judge gives a decision.
Consent is the most frequently used defence by a criminal lawyer to an assault charge. If two people agree to fight with each other and, if bodily harm is not intended or caused, for example, then the physical contact between them may not be assault. Similarly, if an adult believes that another adult consented to a sexual act, then the act may not be considered to be sexual assault. Proof of an offence will depend on several factors set out in s.265 of the Criminal Code, including if the accused applied force on the victim, if the accused had the ability to give effect to his or her purpose or if the victim reasonably believe he or she could give effect to the purpose, and injuries, if any, that occurred.
Self-defence, defending a third party and defence of property are the next most common defences to an assault charge. The laws on self-defence are a grey area, however, and many cases have resulted where a victim has used lethal force against an intruder. Under s.40 of the Criminal Code, everyone who is in possession of a dwelling house is justified in using “as much force as necessary” to prevent any person from forcibly breaking into or entering the dwelling house without lawful authority. Further, the criminal code states that a property owner can only make a citizen’s arrest if the alleged wrongdoer is caught in the act. Apprehending a thief can lead to an assault charge under s.38 of the Criminal Code if you strike or cause bodily harm to the one who is stealing your belongings, however. Every scenario in criminal law is unique based on the facts of the case.
Contact Banks, Gubbins & Andrews Criminal Law
An experienced domestic violence lawyer in Grande Prairie is available to help you with your situation. Our criminal defence lawyers in Alberta provide a free consultation about your criminal case. Contact us immediately for the best results at 780-830-0322.