INTIMATE PARTNER OFFENCES
“Domestic” Allegations
Perhaps contrary to common understanding, there are no crimes in the Criminal Code of Canada that are specifically “domestic” in nature. However, many offences of general application, such as assaults and threatening, are treated more seriously when committed in a domestic context.
The phrase Intimate Partner is non-exhaustively defined in Section 2 of the Criminal Code as including “current or former spouse, common-law partner and dating Partner”.
In all crimes where the victim is an intimate partner, Courts are directed by Parliament to treat this fact as an aggravating factor when passing sentence (Criminal Code s. 718.2) and to explicitly consider the increased vulnerability of female persons, in particular, Aboriginal female victims (Criminal Code s. 718.012)
In addition to any sentence imposed, a mandatory weapons prohibition will be imposed where violence is used, threatened or attempted against an intimate partner: Criminal Code s. 109 (1) (a.1)
When a person is convicted a second time of a crime of violence against an intimate partner, a court may impose a jail sentence which exceeds the maximum jail sentence normally permitted for the crime: Criminal Code s. 718.3 (8)
When a person is found guilty of a crime of violence against an intimate partner, child or other member of the offender’s household, a court may, in addition to any other order, direct that the offender pay the reasonable expenses incurred by the victim “as a result of moving out of the offender’s household, for temporary housing, food, child care and transportation”: Criminal Code s. 738 (1) I
Bail
In most cases when bail is applied for, the onus is on the prosecution to show cause why the accused should not be released on bail. However, in some situations, the onus is reversed—detention is the presumption and the accused must show cause why he or she should not be detained. Such is the case when an accused applying for bail for an offence involving intimate partner violence has previously been found guilty of such a crime: Criminal Code s. 515 (6) (b.1)
When imposing conditions as part of a bail release order, a court must consider the fact that the accused person is charged with an offence during the commission of which violence was used, threatened or attempted against an intimate partner: Criminal Code s. 515 (3)(a)
Allegations of Domestic Violence
Allegations of domestic violence are treated uniquely in the Canadian criminal justice system. Police have zero tolerance charging policies and Crown attorneys operate in a culture that openly assumes guilt. Complainants are routinely referred to as victims in disclosure materials and official documents, despite the legal presumption of innocence. No-contact bail conditions often have the effect of banning accused persons from their own homes, separating them from their children and ending their marriages—unintended consequences that, often, even the complainant did not anticipate, intend or desire.
David G. Bayliss and Luka Rados have extensive experience in handling domestic violence allegations. They regularly employ reputable counselling services providers and have a proven track record of successfully diverting criminal charges and avoiding criminal convictions for their clients. In cases where a restorative justice approach to the resolution of domestic violence charges is not possible, David G. Bayliss and Luka Rados know how to win at trial. See Successful Cases.
