5.5 Domestic Violence
Public Prosecution Service of Canada Deskbook
Guideline of the Director Issued under Section 3(3)(c) of the Director of Public Prosecutions Act
Revised January 31, 2022
Table of Contents
- 1. Introduction
- 2. Application of the Guideline
- 3. The Court Process
- 4. Sentence
- 5. Alternatives to Prosecutions
- 6. The Use of Section 810 Recognizances
This guideline highlights the importance of ensuring that the safety of complainants, and their families, is the paramount consideration at all stages of the prosecution.
A domestic violence case is one involving a physical or sexual assault, or threat of such violence, against an intimate partner. An intimate partner, with respect to a person, includes their current or former spouse, common-law partner and dating partner. The definition encompasses both opposite and same-sex partnerships.
2. Application of the guideline
The Public Prosecution Service of Canada (PPSC) has jurisdiction to prosecute domestic violence cases in Canada's three territories. It is therefore incumbent upon Crown counsel to take into account circumstances particular to the North, including its Indigenous people and their history. With respect to the prosecution of domestic violence cases in the North, Crown counsel must be informed about the present-day reality and history of remote Indigenous communities, as well as their impact on the rate of domestic violence. These circumstances include the fact that in many small northern communities, the options available to complainants of domestic violence may be limited because:
- complainants may not have access to the same types of support typically available in larger communities in southern Canada, such as emergency shelters or counselling services;
- absolute prohibitions on contact with the alleged abuser may be unrealistic in a small isolated community;
- complainants may still be committed to the relationship even though they would like the violence to cease;
- there are often financial or subsistence considerations that can impact a complainant and children in the family; and
- options for treatment of accused persons or couples may not be available.
3. The Court Process
3.1. Evidentiary considerations and the decision to prosecute
Crown counsel must obtain the prior consent of the Chief Federal Prosecutor (CFP) or their designate in domestic violence prosecutions where there is a reasonable prospect of conviction, but Crown counsel proposes to terminate the prosecution on the basis that it is not in the public interest to proceed.
When considering whether a prosecution best serves the public interest, Crown counsel must consider the criteria set out in the PPSC Deskbook guideline "2.3 Decision to Prosecute". Crown counsel should also consider:
- the view of the complainant;
- the community supports available and being accessed by the complainant;
- any indication that the complainant has been directly or indirectly threatened or intimidated by the accused or the accused's family or friends in connection with the present prosecution;
- any undue trauma that may be caused if the complainant is required to testify;
- any indication that the complainant may commit perjury if called to testify;
- the likelihood that similar offences will be committed in the future, particularly against the complainant or children in the home;
- the efforts of the accused to address the abusive behaviour through counselling or some other treatment or program, including culturally-based healing programs; and
- the accused's prior convictions for domestic violence offences or other violent offences.
Where it is determined that the police investigation has not provided all the information or evidence that may be available in relation to these factors, Crown counsel should advise the police in writing at the earliest possible stage that the evidence is incomplete.
A record explaining the reasons of any decision to terminate a domestic violence prosecution must be placed on file and copied to the CFP or their designate.
In all cases where a domestic violence prosecution is terminated, Crown counsel must make all reasonable efforts to communicate their decision to the police and the complainant before terminating the prosecution. In exceptional cases where this is not possible, this should be done as soon as possible thereafter.
3.2. Judicial interim release
In some circumstances, victims of domestic violence may express wishes for reconciliation and to have the accused released from custody. In determining what position to take at the judicial interim release stage, Crown counsel must ensure that the victim's wishes do not outweigh serious objective concerns for the safety of the victim and members of the family.
Complainants in domestic violence cases may be reluctant to cooperate with the prosecution. While a complainant's views are relevant, the responsibility for the prosecution and decisions to be made at the stage of interim release rests with Crown counsel.
In assessing what position to take on the issue of interim release, Crown counsel must address the safety of the complainant and any children, regardless of whether the onus to show cause is on the Crown or the accused. When taking a position on release, Crown counsel must be mindful of the principle and considerations in section 493.1. Under this section, it is necessary to give primary consideration to the release of the accused on the least onerous conditions paying particular attention to the circumstances of both Indigenous accused and those from vulnerable populations. Section 515(3) obligates a justice to consider intimate partner violence when making a decision to release.
When necessary, Crown counsel should not hesitate to request additional relevant information from both the accused (through defence counsel or duty counsel) and the police. This information may assist in determining what terms of release are appropriate. Crown counsel should also request assistance in the preparation of submissions for a show cause hearing.
Crown counsel should oppose the accused's release if it creates an unreasonable risk to the complainant. Where the court is satisfied that the accused can be released, some restrictions will ordinarily be necessary to ensure the safety of the complainant and to preserve the integrity of the prosecution. As circumstances may require, Crown counsel should consider recommending the following conditions:
- non-communication with the complainant directly or indirectly;
- arrangements for access to children through a neutral third party (if the court is inclined to allow the accused to have contact with the children);
- prohibiting attendance at or near the residence or place of work of the complainant;
- surrender of all firearms, ammunition, explosives and firearms licence;
- where limits to the consumption of alcohol or drugs are considered, counsel should turn their mind to the connection of the substance use to the circumstances of the allegation and the ability of the accused to comply with such a condition; and
- in communities where access to domestic violence treatment programs is available, and the accused has expressly consented, attend all appointments required for treatment purposes and to comply with all related conditions.
Crown counsel should always seek to avoid situations which may have the effect of re-victimizing the complainant. Crown counsel should ensure that decisions or representations made at the interim release stage do not have the effect of forcing or pressuring the complainant and the children to leave the family home or community.
Where the accused is released from custody, a copy of any conditions should be provided to the complainant. In circumstances where the complainant has relocated to another community, Crown counsel or the Crown Witness Coordinator shall ensure that the police detachment nearest to the complainant is informed of the release terms. The police detachment in both the accused's and the complainant's communities should be provided with copies of the terms of release.
In some circumstances, the police may seek Crown counsel's advice on whether to release an accused person from custody before the formal laying of charges. It is also possible that the accused seeks changes to the terms specified by the police in the appearance notice or undertaking. In all these situations, Crown counsel must ensure that police provide all the particulars of the case and relevant information before providing advice on the issue of interim release or before determining whether the changes being sought should be consented to or opposed. If an accused has been arrested and then released by the police on an appearance notice or undertaking, Crown counsel should review and determine if the conditions are adequate to protect the complainant and the children, as the case may be. If necessary, Crown counsel should request a warrant or a variation of the conditions pursuant to ss. 502(1) or 512 of the Code.
Where the court decides to release an accused in circumstances where Crown counsel considers that the complainant or other family members may be at risk, immediate consideration should be given to making an application for bail review, after consultation with the CFP or their designate.
Crown counsel should always consider recommending an order prohibiting the accused from having contact with the complainant or other persons that may be necessary, pursuant to ss. 516(2) or 515(12) of the Code.
Throughout the interim release process, Crown counsel or the Crown Witness Coordinator must keep the complainant informed of the proceedings and any outcomes relevant to the complainant's safety. The Crown Witness Coordinator must advise Crown counsel of any information provided by the complainant that may be relevant to the interim release process or that may have other evidentiary implications.
3.3. Preparation of witnesses and the role of Crown Witness Coordinators
Witness preparation is an important function in domestic violence cases. Crown counsel and Crown Witness Coordinators should work together to prepare complainants for the criminal court process. Special attention should be paid to the background and context of the witness so that any preparation process is sensitive to the needs of the witness. During this process, Crown counsel or a Crown Witness Coordinator should ensure that the following steps are taken:
- where possible, meet with the complainant as soon as possible after charges are laid and prior to any proceeding where the complainant may be called to testify;
- where possible, communicate with the complainant in the language of their choice or obtain the assistance of a person who is able to communicate in this language;
- explain the role of Crown counsel and defence counsel in criminal proceedings;
- explain the role of the Crown Witness Coordinator;
- explain the role of a witness in court;
- assess the complainant's reliability as a witness;
- tell the complainant or witness that they must testify truthfully;
- inform the complainant of any release conditions imposed on the accused, and determine if the complainant has any concerns with the accused's compliance with those conditions;
- confirm that the complainant has been made aware of available community services;
- attempt to answer any questions the complainant may have and discuss any continuing safety concerns; and
- ensure that the complainant has been informed of the opportunity to file a Victim Impact Statement.
Crown counsel or the Crown Witness Coordinator must review the complainant's police statement with them. In circumstances where a Crown Witness Coordinator reviews a statement with the complainant, the Crown Witness Coordinator must document the particulars of that meeting and inform Crown counsel of any new or inconsistent information provided by the complainant.
Crown counsel must inform defence counsel immediately if new information, or information inconsistent with the previous statement, is provided by the complainant or any other witness.
3.4. Issues at trial
Where a complainant fails to attend court, Crown counsel should make every reasonable effort to determine the reason(s) for the complainant's failure to appear. Crown counsel should generally seek an adjournment unless they are in a position to proceed to trial without calling the complainant as a witness.
In circumstances where Crown counsel considers seeking a witness warrant against the complainant, Crown counsel must obtain the prior permission of the CFP or their designate where practicable. Where prior consent is not feasible, Crown counsel must provide the CFP or their designate with a written memorandum explaining this decision and ensure the memo is placed on file.
In cases where a witness warrant is obtained, Crown counsel should inform the police about the circumstances surrounding the issuance of the warrant. Ordinarily, Crown counsel will advise the police to seek information from the complainant about the reason for not attending court and that the complainant should be released as soon as possible on terms that they attend court as required.
In domestic violence cases, it is quite common for complainants to demonstrate reluctance or unwillingness to participate in the criminal justice process. In order to maximize the prospect that the complainant will participate in the process, Crown counsel and Crown Witness Coordinators must work together and provide support and information to complainants throughout the process. It is particularly important to contact the complainant at the earliest possible opportunity.
In most, if not all cases, Crown counsel should seek an order restricting publication of any information that could identify the complainant in sexual offence cases pursuant to s. 486.4 of the Criminal Code.
In cases where the complainant raises concerns about testifying, Crown counsel should consider the following:
- seeking the early intervention of a Crown Witness Coordinator or other support person to assess the complainant's willingness to participate in the process and any reasons for their reluctance to participate;
- reviewing the case to determine if the police should be asked to obtain a sworn videotaped statement from the complainant; and
- applying to the court for a testimonial aid such as the following:
- allowing a support person inside the courtroom pursuant to s. 486.1(2.1) of the Criminal Code;
- allowing the use of screen or closed-circuit television pursuant to s. 486.2(2.1) of the Criminal Code; or
- in rare cases, an order excluding the public from the courtroom while the complainant gives evidence pursuant to s. 486(1) of the Criminal Code.
If the complainant refuses to testify, Crown counsel should consider whether other admissible evidence is sufficient to prove the domestic violence offence. Crown counsel may consider excusing the complainant from testifying without further consequence.
If the complainant does testify but cannot recall details, or the testimony differs from previous statements given, Crown counsel should consider the various options available that may enable the presentation of credible and reliable evidence of the complainant before the court, such as:
- seeking leave to show the complainant a prior statement, for the purpose of refreshing their memory;
- seeking leave to cross-examine the complainant as an adverse witness, pursuant to s. 9(1) of the Canada Evidence Act;Footnote 1
- seeking leave to cross-examine the complainant on the prior inconsistent statement, pursuant to s. 9(2) of the Canada Evidence Act;
- seeking to introduce evidence of a prior inconsistent statement for the truth of its contents, pursuant to the Supreme Court's judgment in R v KGB;Footnote 2 and
- seeking to introduce evidence of prior out-of-court utterances of the complainant as res gestae evidence (e.g. police officer hearsay, 911 or police dispatch tapes).
Where an accused pleads guilty or is found guilty of a domestic violence offence, Crown counsel's submissions on sentencing should include ensuring the long-term safety of the complainant and other family members. Section 718.2(a)(ii) of the Code makes abuse of one's spouse, common law partner or child an aggravating feature on sentence. Courts have found denunciation and deterrence to be important sentencing principles in cases of domestic violence. Section 718.04 states that these objectives are the primary consideration when the victim is part of a vulnerable population. Section 718.201 requires courts to consider the increased vulnerability of female victims with particular attention to be paid to the circumstances of Indigenous female victims when determining a sentence.
In cases involving Indigenous offenders, particular attention must be paid to the principle of restraint in s. 718.2(e) as explained by the Supreme Court of Canada in R v GladueFootnote 3 and R v Ipeelee.Footnote 4 The principle requires that all available sanctions that are reasonable in the circumstances (other than imprisonment) be considered given: (a) the unique systemic or background factors which may have played a part in bringing the particular Indigenous offender before the courts; and (b) the types of sentencing procedures and sanctions which may be appropriate in the circumstances for the offender because of their particular Indigenous heritage or connection.
Where available in the three territories, Crown counsel are also encouraged to seek the engagement of community, professional and therapeutic resources that may assist in treating the accused and preventing a reoccurrence of violence between partners who choose to continue in their relationships. This includes seeking out culturally-based or Indigenous healing programs which may be locally available.
Crown counsel should also consider the following:
- Where an accused person has a prior conviction for violence against an intimate partner, counsel should refer to s. 718.3(8) for elevated maximum sentences. Counsel may need to seek additional information from the police or court records to determine whether a prior violent conviction was against an intimate partner as defined in s. 2.
- 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.Footnote 5 An accused who has successfully completed the treatment process of a specialized therapeutic court program is an example of extraordinary and compelling circumstances for a discharge. Whether a conditional or absolute discharge is appropriate must be determined on a case-by-case basis.
- Consideration should be given to seeking probation with conditions obliging the accused to participate in a therapeutic violence prevention program. Where necessary, conditions aimed at ensuring the safety of the complainant and other family members, including a no contact condition, should be sought.
- Crown counsel must ensure that the complainant is given a reasonable opportunity to prepare and submit a Victim Impact Statement, pursuant to s. 722 of the Criminal Code. In cases where a victim impact statement is not filed, counsel may need to seek additional information to provide to the Court about the personal circumstances of the victim to satisfy s. 718.04.
- Crown counsel should consider recommending an order prohibiting the possession of weapons or firearms, pursuant to ss. 109 (mandatory) and 110 (discretionary) of the Criminal Code. However, Crown counsel must be sensitive to the need for hunting for subsistence or cultural reasons which may justify lifting the prohibition order in accordance with s. 113 of the Criminal Code.
- Crown counsel should seek orders pursuant to ss. 114 and 115 of the Criminal Code directing that any firearms licence be surrendered and forfeited where a prohibition order has been imposed.
- Crown counsel should consider seeking an order for forfeiture of any weapon or ammunition used in the commission of a domestic violence offence.
- Crown counsel should consider seeking a DNA order, pursuant to s. 487.051 of the Criminal Code.
- When a custodial sentence is sought, Crown counsel should consider seeking an order pursuant to s. 743.21 of the Criminal Code prohibiting the accused from communicating directly or indirectly with the complainant or witness during the period of custody.
- Crown counsel should generally not consider recommending a conditional sentence pursuant to s. 742.1 of the Criminal Code in circumstances where an accused has in the past received a conditional sentence for domestic violence-related offence(s). Before seeking or agreeing to a conditional sentence for an accused in this circumstance, Crown counsel first must seek the approval of the CFP or their designate.
Crown counsel, with the assistance of a Crown Witness Coordinator, shall take reasonable steps to ensure that the complainant is informed of the sentence imposed and the status of any appeal proceedings undertaken.
5. Alternatives to Prosecutions
Crown counsel may only resort to diversion, alternative measures, or extrajudicial sanctions in cases involving domestic violence with the prior consent of the CFP or their designate.
Such alternatives to prosecutions should only be pursued in cases where there is a reasonable prospect of conviction. In addition, Crown counsel must consider ss. 2 and 3 of the PPSC Deskbook directive, "3.8 Alternative Measures", the views of the complainant, the views of the police, and the views of other officials or treatment professionals who can assist in the assessment of the appropriateness of resolving by way of alternative measures. If the complainant expresses disagreement or reluctance to alternative measures, Crown counsel must inquire as to the reasons behind the complainant's disagreement or concern. The reasons for such disagreement or concern are factors that Crown counsel must consider in determining whether it is in the public interest to terminate a prosecution in order to resolve a domestic violence case using alternative measures.
6. The Use of Section 810 Recognizances
Before resorting to s. 810 of the Criminal Code in domestic violence cases, Crown counsel must obtain the consent of the CFP or their designate. Both counsel and the CFP should consider Indigenous concepts of justice in their analysis of whether a peace bond is appropriate in the circumstances.
Section 810 may be resorted to where there is no reasonable prospect of conviction on the evidence, but there is a reasonable prospect of meeting the threshold for a recognizance under s. 810. In this circumstance, Crown counsel must ensure that the defence counsel understands the withdrawal or stay of the domestic violence charge(s) is not because of the accused's willingness to agree to abide by a s. 810 recognizance. Rather, it is on the basis that the complainant reasonably fears for their safety, the safety of other family members, or property.
Section 810 may also be resorted to where there is a reasonable prospect of conviction but a prosecution does not best serve the public interest. Before seeking the consent of the CFP, Crown counsel must seek the views of the complainant, police and other administration of justice officials or treatment professionals. Generally, a peace bond may be appropriate in the following circumstances:
- the complainant is agreeable to such a disposition;
- the violence involved was minimal;
- the accused has no history of violence with either this complainant or others;
- there is a realistic safety plan for ensuring that future violence is avoided;
- the available information about the accused's treatment and rehabilitative steps is consistent with the prospect that future violence will be avoided; and
- there are resources in the community for the effective monitoring of compliance with the peace bond, for example by the police or probation services.
If the accused enters into a s. 810 recognizance, Crown counsel or a Crown Witness Coordinator must inform the complainant of the terms of the recognizance and the implications of non-compliance by the accused.
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