The Domestic Violence Process and Immediate Consequences: Part 4

The Domestic Violence Process and Immediate Consequences: Part 4

Read Part 1 here

Read Part 2 here

Read Part 3 here

Other forms of resolution
A peace bond is not offered in every case where a charge for simple assault has been laid. There are unfortunately some crown prosecutors who will not offer a peace bond in some circumstances. A peace bond will rarely be offered in the following set of circumstances:

  • If the alleged assault occurred in front of children;
  • If there is an allegation of choking or strangling;
  • If you have a prior record for a domestic related assault;

This list is not exhaustive, some crown prosecutors in some jurisdictions simply don’t believe in peace bonds in the domestic context. If this is the case, they will likely ask you to plead guilty.

IF YOU DO NOT HAVE A CRIMINAL RECORD AND HAVE ONLY BEEN CHARGED WITH A SIMPLE ASSAULT UNDER SECTION 266 OF THE CRIMINAL CODE AND HAVE NO OTHER OUTSTANDING CHARGES DO NOT PLEAD GUILTY!!!!

The most commonly asked question whenever anyone faces an assault charge is “Am I going to jail?” While no defence lawyer can give you any guarantee with respect to this answer we can tell you out of experience that even if you are convicted of a simple assault AFTER trial, and you did not have a prior criminal record, the likelihood of you going to jail for a first offence is extremely low.

Crown prosecutors will often try and convince individuals to plead guilty before trial by saying that they will seek a jail sentence if you are convicted after trial. The truth of the matter is that the crown can ask for whatever they want at a sentencing hearing, however they do not make the decision as to what your sentence will be. This job is left for the Judge. Do not fall for the crown prosecutors’ tricks that you will be going to jail unless you plead guilty before trial. This simply isn’t true.

Further to this, anything can happen on the day of trial. In Canada an accused person usually has the right to cross examine their accuser (the complainant) on the complaint they have made. If the crown witness (the complainant) does not show up on the trial date, the crown prosecutor will likely not be able proceed with the trial and your charges will be dismissed. Please be advised that there are some instances where the crown will try to proceed with the trial even without the complainant present. If you have reason to believe that the crown will be proceeding to trial with or without the complainant present you should contact a criminal lawyer to understand how best to defend yourself in these instances.

Another reason not to plead guilty before trial in rural jurisdictions is because trial dates only occur 1 day per week. This means that multiple trials are scheduled for the same day and the crown will be required to pick and choose which trials should go ahead. While the crown prosecutor is free to ask for an adjournment of your matter, more often than not the crown will offer you a more reasonable resolution on your matters, such as a peace bond or conditional discharge, instead of asking the Judge to reschedule your trial. On some occasions, the crown prosecutor may simply withdraw your charges on the day of trial if there are other issues with their case, such as the reliability of their witnesses.

If you are convicted AFTER trial of a simple assault, and do not have a prior related record, you are likely only going to receive a fine or probation. In some circumstances you may even be able to receive a conditional discharge.

The reason you are likely not going to jail for a first offence is because the Criminal Code has a set of sentencing guidelines which are found in section 718. While an assault that is domestic in nature is an aggravating factor at sentencing, section 718.2(d) and (e) specifically state the following:

718.2(d) 
an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; and
(e) all available sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with the harm done to victims or to the community should be considered for all offenders, with particular attention to the circumstances of Aboriginal offenders.

This means that jail is to be used as a LAST RESORT. It is reserved for individuals who time and time again come before the courts with related criminal charges and have been given multiple previous opportunities to correct their behavior before jail is imposed.

What if I’m offered a Conditional Discharge if I plead guilty before trial?
In some circumstances the crown prosecutor may refuse to offer a peace bond but may offer you a conditional discharge if you plead guilty. The primary difference between a peace bond and a conditional discharge is that with a conditional discharge you are required to plead guilty in front of a Judge and make an admission of guilt. Again, a peace bond does not require a guilty plea OR an admission of guilt.

A conditional discharge is a form of sentence where the offender is given a period of probation with a set of conditions they must satisfy over a period of time. If that individual satisfies the court of all the stipulated conditions, the conviction itself will not be recorded. In effect, it will mean that you do not have a criminal record. To get a conditional discharge the court must be satisfied that not only is it in your best interests to receive the discharge, but it is also not against the public interest to receive the discharge. A conditional discharge for domestic assaults is actually quite rare.

Standard conditions for a conditional discharge are similar if not identical to the ones imposed on a peace bond. They will ordinarily include no contact, no go, abstention from intoxicants, and a wide range of counselling. Once you have satisfied the conditions of your probation, the discharge becomes absolute and the conviction against you will not be recorded on your criminal record.

If you have an outstanding charge and the crown has offered you a conditional discharge in return for a guilty plea, please consult with a lawyer as to the benefits and down sides to a conditional discharge.

What kind of counselling do I have to take, and how much is this going to cost me?
Whether you are offered a peace bond or receive a conditional discharge you will more than likely be required to undertake counselling. While there are many different types of counselling, the main forms of counselling for a domestic related offence concentrate on the following:

  • Domestic violence;
  • Anger management; and
  • Substance abuse.

Counselling sessions are generally done on an in person weekly basis. The most common counselling agencies in Calgary and area is Sherriff King and Calgary Counselling through Alberta Health Services. These counselling agencies provide concentrated weekly sessions. If you are required to attend counselling either through your release conditions or by court order, the counselling is free of charge. In most cases the counselling program will be completed between 10 and 20 weeks depending on how many sessions you are able to attend each week.

Please be advised that given the current global pandemic, in person counselling has been suspended and they are currently working on conducting virtual counselling sessions for those in need.

I have also been served with an Emergency Protection Order, what is that?
In some domestic violence scenarios, on top of your criminal charges for assault you will be served with an Emergency Protection Order (EPOs). This is a civil order pursuant to the Protection Against Family Violence Act and has absolutely nothing to do with your criminal charges.

Unfortunately, in 2020 EPOs are commonly used as a sword instead of a shield. This is because the standard of proof required to obtain an EPO is exceptionally minimal. Your husband/wife simply stating “he hit me!” is enough to grant an EPO.

If you have been served with an EPO you will see on your paperwork a review date. It is essential that you contact a lawyer prior to this review date to fully understand the ramifications of the EPO and the effect it will have on your life should it be put in place for a period of 1 year.

Often times, disgruntled spouses will seek EPOs to obtain an exclusive possession order for YOUR house. Do not let them do this, you DO have the ability to fight the EPO! The review date is simply an appearance date to either confirm the EPO or set a “viva voce” hearing in front of a Queen’s Bench Justice to determine whether there are actually grounds to order the EPO.

While EPOs are generally dealt with by family lawyers, the lawyers at Dunn and Associates are trained to handle EPOs and make the appropriate representations on your behalf so that you don’t find yourself systematically kicked out of your home or have restricted access to your children.