Why You Need a Lawyer Following a Domestic Violence Charge2 Comments
Being charged with a criminal offence can be devastating. Many people believe that because they are innocent, they do not require a lawyer, or that a lawyer is an unnecessary expense. This is usually a mistake. A big mistake.
The criminal justice system is not always sympathetic or understanding. The consequences of being found guilty are profound and life changing. A criminal lawyer is the first step in properly assessing the jeopardy you are facing. The severity and complexity of a domestic violence charge requires the expertise and emotional detachment of a defence lawyer.
A finding of guilt can result in the loss of employment or have significant ramifications in family law proceedings. Being found guilty can also cause severe immigration consequences. While self-representation is possible, it is almost always an unwise decision. There is a common saying that the lawyer who represents himself has a fool for a client. Someone without any legal education or knowledge representing themselves can often have disastrous consequences.
What is domestic violence?
A “domestic violence” charge is not a specific offence in itself. The term applies to a wide range of offences occurring in a domestic context. It can mean any act or omission committed against a partner, child, or relative. Domestic violence refers most frequently to the use of force, threats, or sexual abuse between partners in an intimate relationship. This obviously includes both opposite and same sex-partners. The most common non-sexual charges that arise in this context are: assault contrary to section 266 of the Criminal Code of Canada, uttering threats contrary to section 264.1 of the Criminal Code, and criminal harassment contrary to section 264 of the Criminal Code.
Domestic violence charges are taken very seriously. A domestic violence charge does not easily “go away”. In Ontario, the Crown Attorneys (the government lawyers that prosecute criminal charges) are governed by the Crown Policy Manual and it outlines the very limited circumstances for when charges of a domestic nature can be withdrawn.
It is important to note that the alleged victim, also known as the complainant, is not the one who chooses whether to lay charges. When police have reasonable grounds to believe that violence has occurred they are required to charge the dominant aggressor. In the domestic violence context, this is referred to as mandatory charging, a policy that was brought into effect in the mid-1990s. Dual charging can occur when it is unclear who the dominant aggressor is and so both participants are charged. Dual charging is rare.
It is also not up to the complainant to drop charges. Only the Crown Attorneys can decide whether to proceed or to withdraw.
There is also a Crown policy on domestic violence. According to the policy, it is usually, though not always, in the public interest to proceed with domestic violence charges where there is reasonable prospect of conviction. The Crown Attorney is directed to withdraw these charges only in exceptional circumstances.
One of the most immediate and difficult consequences of a domestic violence charge is that the person charged, if released from by the police or on bail, will have a no-contact, no-communication condition with the complainant. This often means that the person charged has to find another place to live, away from their partner, since they cannot be around them or even speak to them. This usually occurs even if the complainant wants to continue living with the accused and wants the charges to be withdrawn.
Complexity arises further when there are children involved, or the complaints have commenced during family litigation.
Legal counsel is invaluable in these circumstances. The accused’s lawyer can communicate with the complainant’s counsel, which can aid in settling matters such as access to children. An undertaking or bail can also be varied to allow the accused and complainant to meet in the presence of counsel, or a mediator or arbitrator. In many circumstances, a lawyer can help change the no contact order to allow the complainant and accused to resume living together. Having a lawyer who can navigate these matters is essential. The cost for breaching an undertaking or bail can be severe, resulting in further criminal charges or time spent in jail because bail is denied. In Ontario, a conviction for breaching bail often results in a thirty day or longer jail sentence.
Independent legal advice for the complainant
Because the police lay charges and the Crown Attorneys decide whether to proceed, the alleged victim may not agree with these decisions. They may not want their loved one charged and may not agree with the version of events reported to the police, even if they were the ones who reported it in time of high stress or emotionally difficultly.
The complainant may try to “help” but end up doing more harm than good, or getting into trouble themselves. A complainant in this situation can benefit from a lawyer to give them independent legal advice. A criminal lawyer will be able to advise the complainant and communicate with the Crown Attorney and the accused person’s lawyer to convey the complainant’s wishes.
Crown Attorneys are often concerned about pressure that can be placed on complainants in abusive situations. Some accused persons may threaten or try to persuade their partner to assist in getting rid of the charges. These concerns are legitimate because this type of behavior is common among abusive spouses. Independent legal advice for the complainant can help a complainant navigate the system and allow the complainant independence through the confidence of having their own representation. A letter or affidavit written with the assistance of independent counsel is often more useful because that lawyer will ensure the complainant is not being improperly pressured.
Importance of Hiring a Lawyer
Hiring a qualified and experienced Toronto defence lawyer to argue your case on your behalf is the best way to increase your chances of getting a positive result. A lawyer will prove invaluable in arguing for bail terms and to help ensure that you don’t spend any unnecessary time behind bars while awaiting your trial date.
A seasoned defence lawyer knows the process and knows what to expect and how to react in a legal context. An experienced defence lawyer also has a greater chance of negotiation a resolution with the Crown Attorney that may be more favourable than going to trial.
Possible outcomes of a domestic violence charge
There are a number of outcomes that can result from a domestic violence charge. A charge may be withdrawn by the Crown, or there could be an acquittal or stay after trial. On the other hand, a finding of guilt (after a guilty plea or trial) can result in a permanent criminal record following incarceration, a fine, or probation, or a temporary criminal record (an absolute or conditional discharge).
A criminal lawyer can advise whether counselling, a course such as the Partner Assault Response (PARS) program, or other steps will be helpful. In some situations, these steps can significantly affect the outcome of a charge. The Crown attorney may offer a lesser penalty such as a conditional discharge in exchange for a plea of guilt, or offer withdrawal of the charge if the accused enters a peace bond.
There is no greater asset than an experienced criminal defence lawyer to guide you through the implications of these potential resolutions.
Living with a criminal record
Living with a criminal record comes with lifelong consequences. Having a criminal record may bar you from entry into the United States, in addition to many other countries. If you are not a Canadian citizen, a criminal record, could get you removed from Canada.
In addition to travel restrictions, your future job success may also be impeded by the presence of a criminal record. Some employers require a criminal record check to be presented as part of the application process and a domestic violence charge will likely bar you from certain employment opportunities. This is especially true of a Vulnerable Sector check, which is an enhanced criminal record check performed if a job involves dealing with children or other vulnerable persons.
Volunteer positions, especially those involving children, almost always require a criminal records check, so coaching your child’s team or being involved in certain community activities may be problematic.
You may be eligible to apply for a pardon (now known as a “record suspension”), 5 or 10 years from the end of your sentence, depending on whether your were convicted of a summary or indictable offence. It must be noted that there is never a guarantee when it comes to applying for a record suspension.
Although hiring a lawyer is not a guarantee of avoiding a criminal record, it will greatly increase your chances of winning your case or achieving a favourable resolution.
Domestic charges are often the result of highly emotionally charged situations. It is wise to have legal counsel that can be objective. Hire an experienced criminal defence lawyer to increase your chances of a successful outcome.
If you are facing domestic assault charges, or are a complainant hoping to see the charges withdrawn, contact Adam Weisberg at Weisberg Law PC.
This post was written by Adam_Weisberg