Understanding Domestic Abuse

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Domestic abuse, also known as family violence or intimate partner violence (IPV), has been identified as a major global public health concern that became even worse during COVID-19 lockdowns. Canadian researchers found the stress and financial worries brought on by the pandemic pushed some who would otherwise be non-violent to abusive behaviour. According to the United Nations, domestic violence is defined as a pattern of behaviour in any relationship that is used to gain or maintain power and control over an intimate partner.

Abuse is emotional, sexual, physical, economic or psychological action or threats used to influence another person and can include any behaviour that frightens, intimidates, manipulates, hurts, humiliates, or injures the victim. While women are most often the victim of IPV, the UN states the abuse affects people of all socioeconomic backgrounds and education levels and “can happen to anyone of any race, age, sexual orientation, religion, or gender.” It occurs in marriages, those living together and couples who are dating.

The Department of Justice (DOJ) states there is no specific offence of family violence in the Criminal Code, but most acts of family violence are crimes in Canada. When charges have been laid, courts have a wide range of powers to detain those charged. Even in instances where no offence has been committed, if personal injury or damage is feared, courts can order peace bonds or recognizances, requiring a person to agree to specific conditions to keep the peace under s. 810 of the Code.

A criminal conviction can have a lasting impact on your life. If you are facing allegations of domestic abuse, you need a skilled lawyer who can build an effective defence. I have defended more than 1,600 people in the past 20 years and I take my commitment to my clients seriously. To find out how I can help you contact me for a free initial consultation.  

Laws have changed to address domestic violence

The Criminal Code has been amended several times since 1983 to address domestic violence. One of those changes saw the onus of proof for bail reversed for someone with a prior conviction for domestic violence. Instead of the crown having to demonstrate why the person should be held in jail, pending trial, the accused with a prior domestic violence conviction now has to prove why they should be released.

The DOJ states that cases of IPV often go unreported to police for a number of reasons, including stigma/shame, the belief that abuse is a private matter, fear of court system intervention, or distrust in the criminal justice system.

The most recent research from Statistics Canada found the rates of police-reported family violence against children and youth, intimate partners, and seniors increased in 2019 for the third consecutive year.

StatsCan reported there were about 400,000 victims of police-reported violent crime in Canada in 2019 with more than 100,000 victimized by a family member. Females accounted for 67 per cent of all victims of family violence.

The Government of Canada states intimate partner violence occurs in private and public as well as online. It can take the form of physical abuse or threats and stalking. It can include sexual violence or emotional/psychological abuse and financial abuse.

Domestic violence is a complex issue

The Department of Justice states IPV is a complex issue with multiple dimensions and causes. As such, many different charges can be laid in cases of domestic abuse.

In cases related to the use of physical and sexual violence charges could include: 

• assault (causing bodily harm, with a weapon and aggravated assault), ss. 265-268)
• kidnapping & forcible confinement (s. 279)
• trafficking in persons (ss. 279.01)
• abduction of a young person (ss. 280-283)
• homicide - murder, attempted murder, infanticide and manslaughter (ss. 229-231 and 235)
• sexual assault (causing bodily harm, with a weapon and aggravated sexual assault) (ss. 271-273)
• sexual offences against children and youth (ss. 151, 152, 153, 155 and 170-172)
• child pornography (s. 163.1) 

Offences related to the administration of justice include:  

• disobeying order of court (s. 127)
• failure to comply with condition of undertaking (s.145(3)),
• failure to comply with probation order (s. 733.1)
• breach of recognizance (s. 811)

In incidents related to psychological or emotional abuse, charges used include:

• criminal harassment (stalking) (s. 264)
• uttering threats (s. 264.1)
• making indecent and harassing phone calls (s. 372)
• trespassing at night (s. 177)
• mischief (s. 430)

Offences related to neglect within the family include: 

• failure to provide necessaries of life (s. 215 )
• abandoning child (ss. 218)
• criminal negligence (including negligence causing bodily harm and death, ss. 219-221)

Offences related to financial abuse include:  

• theft (ss. 322, 328-330, 334)
• theft by person holding power of attorney (s. 331)
• misappropriation of money held under direction (s. 332)
• theft of, forgery of credit card (s. 342)
• extortion (s. 346)
• forgery (s. 366)
• fraud (s.380(1)) 

Domestic assault is treated more harshly than other crimes

The justice system takes IPV more seriously than other forms of assault and prosecutors are less inclined to drop charges in such cases. In 1996, the Criminal Code was amended to include s. 718.2, which directs judges to consider intimate partner violence as an aggravating factor on sentencing.

The nature of the offence requires the crown to focus on ensuring the long-term safety of the complainant and other family members when an accused is convicted of domestic assault.

According to the Public Prosecution Service of Canada (PPSC), courts have found “denunciation and deterrence to be important sentencing principles in cases of domestic violence.”

“In most circumstances, domestic violence cases are not suitable for conditional or absolute discharges unless extraordinary and compelling circumstances are present. This is because such dispositions do not adequately reflect public denunciation of domestic violence and the need to deter such offences,” according to the PPSC. However, I have had several instances where these types of sentences were granted.
 
Because a variety of sections of the Criminal Code deal with IPV, the charge could proceed by summary conviction or as an indictable offence, which carries much harsher sentences. The sentence, of course, depends on the severity of the crime and whether the accused is a repeat offender. Minor offences could result in an absolute discharge or probation with conditions.

Don’t take a chance with your future

Oftentimes domestic abuse allegations are unfounded. If you have been charged with domestic assault, it is in your best interest to have someone on your side who can build a strong case in your defence. If you are found guilty you will have a criminal record that could have a lasting effect on your life. You need a lawyer who has the knowledge and experience to defend you. I invite you to read my client testimonials then contact me for a free initial consultation.