What type of evidence can be used for and against me?
When someone calls the police and claims they were a victim of domestic assault, officers will probably take away the suspect in handcuffs and then start collecting evidence. If you find yourself in that situation, don’t give a statement to the police but instead call an attorney who can help you present the best defence possible if the matter ends up before a judge a year or more later.
Let’s look at some of the evidence that may work for and against those facing accusations.
Medical records have shortcomings
If the complainant sought medical care after the alleged incident there will be a file. But as a study by the British Columbia’s Women’s Hospital and Health Centre states: “Health professionals do not always accurately record what they are told. They may be influenced by assumptions, including gendered and racial assumptions, about violence against women. As a result, the objectivity, relevance, or non-prejudicial nature of records within the health sector should not be taken for granted.”
The report adds that the records can be used differently in criminal and civil cases.
“As a result, the filters through which health professionals conceptualize and record, or alternatively, do not properly document women’s experiences of abuse have the potential to contribute to women’s inequality because they may be used as reliable records in the legal system to represent objective truth,” the study states.
There is also a chance the records will show the complainant has a psychiatric or drug use history, which may impact her credibility, according to the findings.
Photos don’t always tell the whole story
If a physical attack is alleged to have occurred, the complainant may have cuts or bruises and could use photos of them as evidence in a trial. The problem arises that claims about domestic assault are often not made until weeks after the incident. If the complainant has photos that show bruising or damage to their skin, as your defence counsel, I will ask for proof that the photo was taken after the alleged incident. If that verification cannot be made, that seriously undermines the authenticity of the photo and the credibility of the accuser. A photo of a cut or bruise really proves nothing if there is no way to show when it was taken.
Testimony of each party
Since most domestic assaults occur behind closed doors there are often no witnesses. In those cases, the court has to weigh the testimony of the complainant against that of the accused. An experienced defence attorney will look for inconsistencies, especially if what the complainant told the police at the time of the arrest differs from the evidence they give in court.
There is a significant number of cases where the court has ruled that the complainant fabricated an incident or exaggerated the severity of what happened. There are numerous reasons why some people might lie to the police. Those include using the charges as a lever in a child custody battle or as a way to get revenge on a partner.
As your defence counsel, my job is to raise issues about the accuser’s credibility and expose any lies, exaggerations and omissions to the court.
Inconsistencies are important because they may indicate a witness is not being truthful, or has tailored their testimony to bolster their case. Minor discrepancies do not have the same impact as major inconsistencies, as judges and juries know that the memory is not precise. However, numerous errors can lead to the conclusion the witness is simply not reliable.
Video cameras are everywhere
Almost any store or business welcoming the public has video cameras recording those who go in or by its location. If someone is accused of domestic assault in a home but they say they were elsewhere at the time, the videotape of one of these cameras might be key to proving their innocence.
Some homes also have cameras recording, perhaps set off my motion detectors. In such cases, the recording will be a key piece of evidence for both sides and may support your defence if you are wrongly accused.
What exactly is domestic assault?
There is no specific charge of “domestic assault” or “domestic violence” in the Criminal Code. Instead, the domestic nature of the relationship is considered as an aggravating factor during sentencing, under s. 718.2.
A “domestic” relationship can mean a relationship between a husband and wife, a parent and child, intimate/common-law partners, or siblings. Other charges where “domestic” can be a factor include mischief to property, intimidation, unlawful confinement and more.
The accused is always presumed innocent
In any Canadian criminal trial, the Crown has the burden of proof. They must prove that the defendant is guilty beyond a reasonable doubt. If not, the judge/jury must acquit the defendant, as it is not up to the defendant or their criminal defence lawyer to prove innocence.
The Supreme Court of Canada has offered a number of guidelines about what is reasonable doubt, an idea that is inextricably intertwined with the presumption of innocence.
In a 1994 case, R. v. S. (W.D.), the Supreme Court stated that it is not necessary that the jury believe the defendant’s evidence to acquit them, laying down this ruling which has been cited in numerous cases since then:
“First, if you believe the evidence of the accused, obviously you must acquit. Second, if you do not believe the testimony of the accused but you are left in reasonable doubt by it, you must acquit. Third, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidence which you do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused.”
This decision has had a profound impact on how “credibility” and evidence is assessed in Canadian courts
Innocent people are charged and convicted
According to a Department of Justice study, Miscarriages of Justice: The Impact of Wrongful Imprisonment, “the problem of wrongful conviction has become an accepted reality in most common law jurisdictions … research has now amply demonstrated that a number of factors, generally occurring together to varying degrees, contribute to wrongful conviction and imprisonment. They include: erroneous eyewitness identification and testimony, police and prosecutorial misconduct, false confessions, over-reliance on in-custody informants, and unsound forensic science or its misuse.”
The losses experienced by those wrongly convicted are profound. These include the loss of freedom and the loss of their former identity, but most of all, the loss of family.
As one man who was wrongfully convicted explained: “It completely devastated that. We lost our home … I lost my kids … I lost the care and guidance and companionship of my dad … the hardest part about being an inmate was the loss of the family.”
If you are wrongly charged with domestic assault, you need an experienced lawyer to defend you and deliver the justice you deserve, while keeping your family together.
Men can be the victims
A 2019 U.K. Government survey indicated that nine per cent of males had experienced some form of partner abuse or about 1.4 million men. This includes stalking, physical violence and sexual assault. In addition, a U.S. study found that male victims are often slapped, kicked, punched, grabbed or choked by their partners.
In Canada, a 2014 Canadian Centre for Justice Statistics survey concluded that “equal proportions of men and women reported being victims of spousal violence during the preceding 5 years (4% respectively).”
What I can do for you
When I meet with clients, I want to gain a full understanding of what happened. Are you married, separated or divorced, or is there a dispute about custody, support, division of assets, possession of the matrimonial home?
Once I have a good understanding of your situation and the incident in question, I review witness statements and the disclosure of the complainant and suggest the best way to proceed. While every case is different, I can draw on my experience to determine the best way forward for you.
And since I am a sole practitioner, I personally answer all calls, voicemails, emails and texts to ensure all the essential details of your case are captured and retained. I am also fully bilingual, ensuring nothing is “lost in translation” in or out of court.
I have a proven track record in helping those accused of domestic assault, so put my experience and knowledge to work for you. Contact me for a free consultation so we can start planning your best defence.