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

December 17 2018 

Table of Contents

1. Introduction

This guideline is aimed at guiding Crown counsel in the exercise of their discretion in cases of domestic violence. The guideline highlights the importance of ensuring that the safety of complainants and their families is the paramount consideration at all stages of the prosecution.

For purposes of this guideline, a domestic violence case is one involving a physical or sexual assault, or threat of such violence, against a partner in a domestic relationship. A partner is a person with whom the accused has, or has previously had, an ongoing personal or intimate relationship, whether or not they are legally married or living together. 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 only in Canada’s three territories. It is therefore incumbent upon Crown counsel to take into account circumstances particular to the North. These circumstances include the fact that in many small northern communities, the options available to complainants of domestic violence may be limited because:

  1. 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;
  2. absolute prohibitions on contact with the alleged abuser may be unrealistic in a small isolated community;
  3. in many circumstances, although complainants may wish the violence to cease, they may still be committed to the relationships;
  4. there are often financial or subsistence considerations that can impact a complainant and children in the family; and
  5. 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

In circumstances where there is a reasonable prospect of conviction, the prior consent of the Chief Federal Prosecutor’s (CFP) or his or her designate’s is required if Crown counsel proposes to terminate a domestic violence prosecution on the basis that it is not in the public interest to proceed.

When considering whether a domestic violence 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 following factors:

  1. the views of the complainant;
  2. whether it appears 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;
  3. whether it appears that the complainant will be unduly traumatized if required to testify;
  4. whether the complainant may commit perjury if called to testify;
  5. whether there is a likelihood of similar offences in the future particularly against the complainant or children in the home;
  6. whether the accused is addressing the abusive behaviour through counselling or some other treatment or program;
  7. whether the accused has 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, Crown counsel should advise the police, at the earliest possible stage, in writing that the evidence is incomplete.

In final analysis, Crown counsel is required to terminate a prosecution if it is determined that there is no reasonable prospect of conviction or that continuing with the prosecution no longer best serves the public interest.

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 his or her designate.

In all cases where a domestic violence prosecution is terminated, Crown counsel is responsible for ensuring that the decision is communicated, prior to it being made public or as soon as practicable thereafter,  to the police and the complainant.

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, when considering such wishes, that these 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 rest with Crown counsel.

In assessing what position to take on the issue of interim release, Crown counsel must address the safety of the complainant(s) and children. When necessary, Crown counsel should not hesitate to request from police additional relevant information that may help in determining what terms of release may be appropriate or assistance in the preparation of submissions for a show cause hearing.

In circumstances where Crown counsel determines that releasing the accused would create an unreasonable risk to the complainant, the release should be opposed. Where the court is satisfied that the accused can be released, some restrictions will ordinarily be necessary both to ensure the safety of the complainant and to preserve the integrity of the prosecution. As circumstances may require, Crown counsel should consider recommending:

  1. non-communication with the complainant directly or indirectly;
  2. if the court is inclined to allow the accused to have contact with the children, conditions regarding access arrangements through a neutral third party;
  3. conditions prohibiting attendance at or near the residence or place of work of the complainant;
  4. a condition requiring the surrender of all firearms, ammunition, explosives and Firearms licence;
  5. a condition to abstain from the consumption of alcohol or drugs;
  6. in communities where access to domestic violence treatment programs is available, a condition requiring accused to 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 the release terms 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. In such 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. If an accused has been arrested and then released by the police on a promise to appear or recognizance providing release terms, 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 and an amendment of the conditions pursuant to ss. 499(4), 503(2.3) or 512 of the Code.

If an accused seeks changes to the terms specified by the police in the promise to appear or recognizance, Crown counsel should contact the police and obtain all documentation and information necessary to determine whether the changes being sought should be consented to or opposed.

It is not uncommon for a complainant to express a willingness to resume contact or even cohabitation with the accused or, when an accused is in custody, to ask that the accused be released. In general, it is the accused’s responsibility to make an application to vary the interim release conditions or to have his custodial status reviewed. Any decisions made by Crown counsel at this stage should only be made on the basis of reliable and thorough information enabling effective safety planning. If there is a history of abuse or information suggesting that renewal of contact may expose the complainant’s or other family members to unreasonable risk, Crown counsel should oppose such changes.

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 his or her designate.

Where a court orders that an accused remain in custody or when an accused is on remand, prior to his bail status being determined, 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 could 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 of Crown counsel prosecuting domestic violence cases. Crown counsel and Crown Witness Coordinators should work together to prepare complainants for the criminal court process. During this process Crown counsel or a Crown Witness Coordinator should ensure that the following steps are taken:

  1. 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;
  2. explain the role of Crown counsel and defence counsel in criminal proceedings;
  3. explain the role of the Crown Witness Coordinator;
  4. explain the role of a witness in court;
  5. assess the complainant's reliability as a witness;
  6. tell the complainant or witness that they must testify truthfully;
  7. 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;
  8. confirm that the complainant has been made aware of available community services;
  9. attempt to answer any questions the complainant may have and discuss any continuing safety concerns; and,
  10. 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 with the complainant the statement given to the police. 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. Where the witness fails to attend

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.

Unless Crown counsel is in a position to proceed to trial without calling the complainant as a witness, Crown counsel should generally seek an adjournment.

In circumstances where Crown counsel considers seeking a witness warrant against the complainant, Crown counsel must, where practicable, obtain the prior permission of the CFP or his or her designate. If such permission is granted, Crown counsel should contact and advise police regarding the circumstances of the issuance of the warrant. Ordinarily, Crown counsel will advise police that they should seek information from the complainant on the reason for not attending court and that the complainant should be released as soon as possible on terms that he or she attend court as required. Where it is not feasible for Crown counsel to obtain the CFP’s or his or her designate’s prior consent, Crown counsel must provide the CFP or his or her designate with a written memorandum explaining this decision and ensure the memo is placed on file.

3.5. Where the witness recants or refuses to testify

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 cases where there is concern that a complainant may recant or decide not to take part in the process, Crown counsel should consider:

  1. 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;
  2. reviewing the case to determine if police should be asked to obtain a sworn videotaped statement from the complainant;
  3. applying to the court, pursuant to s. 486, for an order:
    1. prohibiting the publication or broadcast of complainant’s identity in sexual offence cases: s. 486(3);
    2. allowing a support person inside the courtroom: s. 486.1(2.1);
    3. allowing the use of screen or closed circuit television: s. 486.2(2.1); or
    4. in rare cases, an order excluding the public from the courtroom while the complainant gives evidence: s. 486(1).

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 or the testimony differs from previous statements given, Crown counsel should consider the various options available that may enable the presentation of credible/reliable evidence of the complainant before the court, such as:

  1. seeking leave to show the complainant a prior statement, for the purpose of refreshing memory;
  2. seeking leave to cross-examine the complainant as an adverse witness, pursuant to s. 9(1) of the Canada Evidence Act;Footnote 1
  3. seeking leave to cross-examine the complainant on the prior inconsistent statement, pursuant to s. 9(2) of the Canada Evidence Act;
  4. 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
  5. 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).

In any domestic violence case, where Crown counsel considers seeking a witness warrant against the complainant, Crown counsel must, where practicable, obtain the prior permission of the CFP or his or her designate. Where it is not feasible for Crown counsel to obtain the CFP’s or his or her designate’s prior consent, Crown counsel must provide the CFP or his or her designate with a written memorandum explaining this decision and ensure the memo is placed on file.

4. Sentence

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 sentencing, and courts have found denunciation and deterrence to be important sentencing principles in cases of domestic violence.

In cases involving aboriginal 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 Gladue[3] and R v IpeeleeFootnote 4. The principle requires that all available sanctions other than imprisonment that are reasonable in the circumstances be considered given: (a) the unique systemic or background factors which may have played a part in bringing the particular aboriginal 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 his or her particular aboriginal heritage or connection.

Where available in the three territories, Crown counsel are also encouraged to seek the engagement of community and professional/therapeutic resources which may assist in treating the accused and prevents a reoccurrence of violence between partners who choose to continue in their relationships.

Crown counsel should also note the following considerations applicable to domestic violence cases:

  1. In most circumstances, domestic violence cases are not suitable for conditional or absolute discharges unless extraordinary and compelling circumstances are present as such dispositions do not adequately reflect public denunciation of domestic violence and the need to deter such offences.Footnote 5
  2. Extraordinary and compelling circumstances for a discharge may arise where, for example, the accused has successfully completed the treatment process of a specialized therapeutic court program. The position to take in such circumstances must be done on a case by case basis, where Crown counsel must determine whether the conditions, provided by law, in support of a discharge have otherwise been met;
  3. Whether or not incarceration is sought, consideration should be given to seeking probation, with conditions obliging the accused to participate in a therapeutic violence prevention program. When necessary, conditions aimed at ensuring the safety of the complainant and other family members, including a no contact condition should be sought;
  4. 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 Code;
  5. Crown counsel should consider recommending a prohibition to possess weapons/firearms when necessary, pursuant to ss. 109 (mandatory) and 110 (discretionary) of the Code;
  6. Crown counsel should seek orders pursuant to ss. 114 and 115 of the Code directing that any firearms licence be surrendered and forfeited where a prohibition order has been imposed;
  7. Crown counsel should consider seeking an order for forfeiture of any weapon or ammunition used in the commission of a domestic violence offence;
  8. Crown counsel should consider seeking a DNA order, pursuant to s. 487.051 of the Code;
  9. When a custodial sentence is sought, Crown counsel should consider seeking an order pursuant to s. 743.21 of the Code prohibiting the accused from communicating directly or indirectly with the complainant or witness during the period of custody;
  10. Crown counsel should generally not consider recommending a conditional sentence 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 who has received such a sentence in the past for a domestic violence related offence, Crown counsel first must seek the approval of the CFP or his or her delegate.

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 Extra-Judicial Sanctions in cases involving domestic violence with the prior consent of the CFP or his or her designate.

Such alternatives to prosecutions should only be pursued in cases where there is a reasonable prospect of conviction and after consideration of sections 2 and 3 of the PPSC Deskbook directive 3.8 Alternative Measures, and of the views of the complainant, of the police, and of other officials and 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 Code in domestic violence cases, Crown counsel must obtain the consent of the CFP or his or her designate.

 

Section 810 may be resorted to where there is no reasonable prospect of conviction on the evidence. In such circumstances Crown counsel must ensure that defence understands that the withdrawal or stay of the domestic violence charges is not done as a result of the accused willingness to agree to abide by a s. 810 recognizance, but rather on the basis that the complainant still reasonably fears for his or her safety, the safety of other family members or property

Section 810 may also be resorted to where on the evidence there is a reasonable prospect of conviction but in the circumstances, a prosecution does not best serve the public interest. These cases will be rare. 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 will be appropriate only where:

  1. the complainant is agreeable to such a disposition;
  2. the violence involved was minimal;
  3. the accused has no history of violence with either this complainant or others;
  4. there is a realistic safety plan for ensuring that future violence is avoided,
  5. the available information about the accused’s treatment and rehabilitative steps is consistent with the prospect that future violence will be avoided; and
  6. 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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