Domestic Assault: How do I get the charges dropped?
When a client is charged with domestic assault, one of the first questions I hear is, “How do I get the charges dropped?”
If a person has a strong case and clear evidence indicating that the complainant is lying about what occurred, the best option may be to go to court to argue for the charges to be abandoned or to push for an acquittal. In other cases where the evidence does not favour my client, there are ways to avoid a potential criminal record, which could harm future job prospects and international travel.
If my client admits they are guilty of a domestic assault allegation but they have no previous record or involvement with the police, I will suggest to the Crown that this was an isolated incident, perhaps brought on by stress or a particular set of circumstances. It also helps if no children were present in the home during the incident and if there is no evidence of stalking or controlling behaviour.
What is a PAR program?
To help my client deal with the stressors that led to the domestic assault and any others coming down the road, they will have to agree to take part in a Partner Assault Response (PAR) program. According to information from the Attorney General, these programs “enhance victim safety and hold offenders accountable for their behaviour.”
With sessions held over 12 weeks, these programs provide offenders the chance to think about their views about domestic abuse and to learn non-physical ways to deal with conflict. In addition, victims can be offered assistance with planning and referrals to community resources, plus they are kept informed about the offender's progress.
If the court is going to consider allowing someone to avoid a criminal record for domestic abuse, they first want to ensure that person has completed a PAR program, not just individual counselling.
What is a peace bond?
Another option to avoid a criminal record is to have the accused sign a peace bond. If the court agrees, charges will be dropped with no criminal conviction or an admission of guilt in exchange for a promise of good behaviour and to keep the peace.
According to a Department of Justice fact sheet, a peace bond is “a protection order made by a court under section 810 of the Criminal Code. It is used where an individual (the defendant) appears likely to commit a criminal offence, but there are no reasonable grounds to believe that an offence has actually been committed.”
In these situations, the document notes, the court may impose specific conditions “designed to prevent the defendant from committing harm to the person, their spouse or common-law partner, their child, or from committing damage to their property.”
To get a peace bond, the fact sheet states the defendant may have to agree to any or all of the following conditions:
- keep the peace and be of good behaviour;
- not contact the person, their spouse, or child;
- not visit the person, their spouse, or child;
- not call the person on the phone;
- not write letters or send text messages;
- abstain from using non-prescription drugs or alcohol, and be required to provide bodily samples to ensure compliance;
- be forbidden from owning weapons;
- pay, or promise to pay, a refundable surety (cash bond) to the Court, which may be forfeited if the defendant subsequently breaches any conditions of the peace bond; or
- any other condition the Court considers desirable to prevent the harm.
I’ve been able to negotiate peace bonds for numerous clients in domestic abuse cases, even in a case where a man faced a sexual assault charge. They had been married for decades, living in both the United States and Canada. When their relationship ended, the woman alleged the man had assaulted her and forced her to have sex when they first met, so the police charged him with sexual assault
In arguing that he should receive a peace bond, I pointed out that she had never aired these allegations in the decades they had been together, so it seemed odd they would only come out when she was asking for a divorce. The Crown agreed to withdraw the sexual assault charges in exchange for a peace bond, a rare compromise that I was able to secure for my client.
Peace bonds do not always work
|Some groups that work with domestic assault victims do not feel peace bonds are effective. That is shown in this 1995 report from the Law Reform Commission of Nova Scotia, From Rhetoric to Reality - Ending Domestic Violence in Nova Scotia.|
It states: “While a peace bond or court order may seem like a good solution, the effectiveness of a peace bond or any other court order is dependent on its enforcement … for example, peace bonds are ineffective partly because of inconsistent enforcement … there are cases where police officers have refused to enforce peace bonds where the woman does not have a written copy of the document on her person … peace bonds were often described as "not worth the paper they are written on.”
What is a discharge?
Depending on circumstances, legal counsel can seek a discharge from the court. While a discharge is only given after an admission of guilt, it is not a conviction. It will show up on a person’s record temporarily, and if that person does not violate its conditions, it will eventually be removed, usually after a year.
According to the S. 730 (1) of the Code, “Where an accused, other than an organization, pleads guilty to or is found guilty of an offence, other than an offence for which a minimum punishment is prescribed by law or an offence punishable by imprisonment for fourteen years or for life, the court before which the accused appears may, if it considers it to be in the best interests of the accused and not contrary to the public interest, instead of convicting the accused, by order direct that the accused be discharged absolutely.”
What if the victim doesn’t want charges?
The person who called the police can later ask that the charges be dropped, but that decision is in the hands of the Crown attorney prosecuting the case. In making this decision the Crown may ask for input from the police and complainant, however, they are not obliged to do so.
With discharges and peace bonds it helps if the complainant agrees with the legal remedy being proposed. Only the Crown can order that charges dropped, and they usually want to see an admission of wrongdoing and a willingness to enrol in a PAR program.
What if I’m falsely accused?
False allegations of domestic assault are levelled against partners for various reasons. Sometimes they may be vindictive and used as a way to turn family members or children against the accused. They can also be used as tools in a divorce or separation, to improve the accuser’s chance in a custody battle.
According to a 2017 Statistics Canada report, there were just under 3,900 incidents of sexual assault reported to police in 2017 that were deemed to be unfounded, representing seven per cent of all unfounded violent criminal incidents, At the same time, sexual assault represented six per cent of all founded incidents of violent crime.
Unfounded criminal incidents generally followed the same trend as overall crime, with the highestvolume offences representing the largest number of unfounded incidents. For example, physical assault, the most common type of violent crime, also accounted for the highest volume of unfounded criminal incidents in 2017 among violent crimes.
False accusations of domestic violence can cause lasting damage, which is why you need experienced legal counsel at your side to clear your name.
Turning the table on a false accuser
False accusations of domestic violence do happen and they sometimes lead to charges against the accuser, as this story shows. It states that a woman and her boyfriend were socializing with friends when the two of them started arguing about the woman being constantly on her phone. The woman “became belligerent with the victim and began to strike him in the head while they were sitting at the kitchen table together,” the story reads. “The accused woman then threw her coffee at the victim as he left the room … the woman followed the victim into the living room and slapped him across the face. The victim tried to walk away from the conflict again, however, the woman followed him and continued to hit him.”
Later that day, the woman went to the police and claimed she had been assaulted by her boyfriend. An investigation was launched, with the police arresting the women a few days later, charging her with assault.
The police issued this statement about the case: “No one has the right to abuse another person. Victims of domestic violence or sexual assault and witnesses are encouraged to contact … police.”
Choose experienced legal counsel
Dealing with the police and the criminal justice system in cases involving domestic assault allegations is a serious matter that requires a skilled and experienced legal advocate. I have helped numerous clients wrongly accused of various domestic assault allegations. If the police have called you for an interview or for questioning, don’t give a statement. First, call me for a free consultation.