I would guess that when most people think of spousal or domestic violence what they envision is the battered woman syndrome: A woman, is physically abused by a man, and the woman keeps forgiving him because the man comes around and apologizes, promising it will never happen again, and the cycle repeats and repeats. Certainly this does happen, and I don’t mean to trivialize the implications of such situations, but in my experience as a defence lawyer who routinely works with spousal and domestic violence cases, these situations are more the exception than the rule. More often than not spousal and domestic violence issues arise out of an escalating argument, or series of arguments, that culminate in a threat or assault, in the heat of the moment. Generally, it is a relatively isolated incident, or a first occurrence, and both parties involved have a difficult time believing it has happened to them.
The latest Statistics Canada numbers indicate that roughly 6% of adult Canadians report that they have been assaulted in some form by their romantic partner in the last 5 years. It doesn’t take a mathematician to project those numbers forward and realize that this is a pretty prevalent occurrence. Spousal or domestic violence is not a problem known only to a particular group of people, it happens across all socioeconomic classes, races, religions, cultures and sexual orientations.
Due to the prevalence of these situations, the criminal justice system in Canada and British Columbia has changed its response over the last several years to a more strict approach, which removes much of the discretion that was previously available to police officers and prosecutors. Now, specific policies are in place for police officers who attend at spousal or domestic violence calls. After the police assess the situation and make certain checklist-style assessments (including identifying who they call the “primary aggressor”), they are almost always required to make an arrest. In British Columbia, despite how minor the allegation of violence may be, their general policy is that after arresting the primary aggressor, they take that person and hold them in jail until a prosecutor and/or a judge agrees to release them. At best this arrest and release process will take several hours, but often it can take an entire weekend and stretch into Monday.
Usually, and likely with help from a lawyer, the accused person is eventually released from jail on a set of promises to the court (or conditions), that they must obey or they can be charged with another criminal offence of breaching the conditions. Invariably these conditions include not having any direct or indirect contact with the complainant (their partner) and not returning to the home (even if it is a residence shared by the partners) except one time with a police officer to gather personal items. Although it is sometimes possible for a lawyer or an accused person to have these conditions changed over time, usually they remain in place until the final conclusion of the matter. This can take anywhere from a couple of weeks, to over a year.
These policies are in place primarily to protect those in the battered woman syndrome from continuing in the cycle, but as I wrote above, in my experience, the vast majority of people who find themselves in this situation don’t fit into that category. The conditions that people accused of spousal or domestic violence agree to; in order to be released from jail, often have serious financial consequences for the family or couple, as that person now has to secure another residence at least for a time. The no contact conditions also often make forgiveness and reconciliation strained, if not almost impossible.
In a hypothetical example of just how stringent these policies can be, say there is a man and woman living together as romantic partners and they are leasing an apartment. One day they have a big argument, and at the end of the argument the man pushes the woman, fairly hard but not close to causing any type of injury. Later that day the woman phones the police to see if she can legally change the locks on their shared apartment. She doesn’t want to see the man for a while and wants to “teach him a lesson.” The police attend at the shared apartment, as far as the woman knows, to provide her with information. During the course of talking to the woman the police find out that the man pushed her during the argument. Despite the woman not wanting the police to arrest the man, they arrest him for assault because that is what their policy requires. The police take the man to jail and the next day a judge releases him on conditions that he not return to the shared apartment and that he not have any contact with the woman. This man and woman would find themselves in a pretty tough situation, and the situation could be the exact same if one of the partners had only verbally threatened the other in the heat of their argument.
The good news is that there are lots of options for those people accused of committing spousal or domestic violence to deal with these types of charges without having a criminal conviction or a criminal record. If the accused person has no (or a very limited) history of spousal or domestic violence, is willing to take responsibility for what has happened and get appropriate support (usually involving counselling), often their lawyer can convince a prosecutor to divert the matter out of formal criminal court proceedings. Some options for this include Alternative Measures, a s.810 recognizance (Peace Bond) or an outright stay of proceedings. All of these outcomes result in not having a criminal record or criminal conviction, but may restrict a person’s ability to travel to the United States for a period of time. If that is a concern, it is something that should be discussed with a lawyer.
Of course, if a person is falsely accused of spousal or domestic violence, or they believe they may have a defence such as self-defence or that there was a mutual physical altercation, they should discuss this with a lawyer before making any decisions about disposing of the matter.
Dealing with these situations, especially for people with little-to-no experience with the criminal justice system, can be quite confusing and difficult. During this time, the decisions a person makes can have far reaching implications that may not be immediately clear to them. Having a lawyer who deals with these situations regularly is a person’s best chance for a good outcome.
This guest article was provided by Ryan Johnson, a criminal defence lawyer in Vancouver, British Columbia, specializing in defending domestic assault charges.