Choices
Facing a domestic violence charge is a deeply distressing and life-altering experience. One could be faced with everything from a criminal record, to fines, to probation and counselling, to jail. While these allegations are taken with the utmost seriousness in the Canadian justice system, there are often avenues to contest the charges, and in some situations, have them dismissed or dropped. It’s a complicated legal matter that calls for immediate legal counsel of the highest order.
One of the greatest myths is that the alleged victim can simply “drop” the charges. In Canada, once criminal charges are laid against someone accused of domestic violence once the police are called upon to investigate such matters, the decision of the Crown Prosecutor to continue prosecution or to discontinue prosecution should depend solely on their own discretion. They take into account the wishes of the complainant, but these wishes do not have any legal weight that can remove prosecutorial charges on their own accord. This policy of “zero-tolerance” has been ingrained to protect vulnerable persons and ensure that these serious matters would never be dismissed because of pressure or intimidation. Therefore, any strategy for doing away with charges must be focused on influencing the Crown Prosecutor.
The primary reasons a Crown Prosecutor might consider getting domestic assault charges dropped generally fall into two categories: insufficient evidence to secure a conviction, or if it is deemed not to be in the public interest to proceed with the prosecution. A competent defence lawyer will take a close look at all the evidence that the prosecution has disclosed to them. The evidence is called “disclosure.” This includes police reports, witness statements or testimonies, 911 calls, photographs of injuries, and anything else that could be related to the prosecution. The lawyer will search for inconsistencies, weaknesses in the testimonies of witnesses, improper collection of the evidence, or some violation of the Charter rights of the accused. The Crown will usually decide that there is no reasonable prospect of conviction if the evidence is weak, conflicting, or otherwise not admissible in court, and may choose to withdraw the charges.
A defence lawyer can also argue for the discontinuation based on the public interest, apart from arguments concerning the evidence. Information regarding mitigation about the accused and the circumstances of the particular incident is presented. For example, the accused might be showing as a first-time offender with no prior criminal record; stable employment history; and represents strong ties to the community, all of which can be presented to demonstrate that the person is not a threat to public safety. Also, demonstrating remorse and taking steps to remedy the matter can be persuasive. For example, the accused may elect to attend anger management counselling voluntarily or to undergo treatment for substance abuse (if addiction was a factor) or to engage in other therapeutic activities. Such steps will show a willingness to resolve the underlying causes of the incident and prevent future occurrences. The Crown’s evaluation of public interest would, therefore, be positively affected.
Another potential means of resolution, particularly in less serious cases, might involve the accused entering into a Peace Bond pursuant to Section 810 of the Criminal Code. This occurs primarily if the relationship between the parties has ended or if there is the consent of both parties. Under such circumstances, the Crown may enter into an agreement to withdraw the criminal charges in exchange for having the accused enter into a Peace Bond. This is not an admission of guilt but a court order compelling an accused person to “keep the peace” and be of “good behavior” for a fixed period (generally one year). The conditions frequently attached include no contact with the complainant, and may entail absolution from alcohol or drugs, and sometimes counselling. On successfully completing the requirements of a Peace Bond, the accused is spared a criminal conviction, making this an exceptionally attractive resolution.
False allegations or misinterpretations of events can also become grounds for challenging domestic violence charges. False accusations can occur, although rarely, from misunderstandings or from circumstances that are highly emotional or have been ill-intended. In such situations, the defence counsel seeks evidence to contradict the accusations, such as text messages, emails, witness statements, or any other documentation that would clarify the real nature of the matter. Immediate legal counsel is essential for anyone facing charges of domestic violence. Experience criminal lawyers can steer through the difficulties of the legal process, identify the best defense strategies, negotiate with Crown Prosecutors, and basically do everything to ensure the best possible outcome, including the dismissal or dropping of charges.
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