Best Practices where there is Family Violence (Criminal Law Perspective)
3. Pre Charge
3.1 Advising a Potential Complainant
Often allegations of family violence are made in the midst of or immediately after a moment of intense conflict. Where police are called in response to an argument between spouses, for example, neither party will likely have received legal advice before a complaint is made and charges are laid. In some circumstances, however, a potential complainant will seek legal advice about ongoing problems in a family or spousal relationship either from a family lawyer or criminal lawyer. Either way, an allegation of violence in the family can have significant immediate and enduring consequences not just for the person accused, but also for the complainant. An individual who is contemplating making a complaint to the police may wish to consider the following.
3.1.1 Ensuring a Complainant’s Safety and Building a Case
Where a potential complainant advises counsel that he or she is being abused by a spouse, or that the spouse is abusing the couple’s children, counsel should take immediate steps to protect the client’s safety and the safety of any children. Counsel can provide practical advice in respect of developing a “safety plan” and/or “exit plan” including advising the client on:
- arranging for alternative accommodations;
- establishing Internet safety habits to protect privacy;
- gathering personal and financial information that may be relevant in anticipated family law proceedings;
- communicating with children’s school/daycare; and
- arranging for emergency financial support.
Clients who are considering making a complaint to police should be advised to record incidents of abuse including the date, time and location of the incidents. The client should also note whether there were any witnesses, what form of violence was used, whether there were any injuries and what action was taken after the incident (e.g. did the victim make a report to family members, friends, colleagues or community support agencies?).
Where abuse is recent, counsel should advise the complainant of the potential benefits of making a report to police immediately and attending at the hospital if necessary or seeking other medical attention. Prompt statements to the police and having pictures taken and documenting injuries by health care professionals can assist in facilitating an effective and efficient prosecution of the abuser (Halpern, et al., 2007: 4-6).
Complainants should also be made aware of their role and rights in the criminal justice system and the protections provided to them by that system, including the resources available from victim assistance programs.
3.1.2 Consequences of Making a Complaint to the Police
Contrary to popular perception, complainants do not “press charges” against accused persons. A victim of domestic abuse can make a complaint to police but it is the police who will decide whether or not to lay a criminal charge. In most jurisdictions across the country, police operate according to directives and policies designed to recognize the dangerous reality facing victims of domestic abuse and to ensure that family violence is treated as a criminal rather than private matter. In general, these directives require the police to lay charges whenever there are reasonable and probable grounds to believe an offence has been committed (Department of Justice, 2003: 9-13). In other words, these directives remove any discretion the police might otherwise have to caution someone or attempt to resolve the dispute without charges.
While outside the scope of this paper, it is important to note that mandatory charge policies are not without criticism. Evidence from the United States suggests that mandatory charge polices can have the unintended effect of resulting in a significant increase in the number of women charged with domestic violence offences. For example, in California, following the introduction of mandatory arrest policies for domestic violence, male arrest rates increased by 136%, while female arrest rates increased more than 500% from 1987 to 2000 (DeLeon-Granados et al., 2006: 359; See also Barbra Schlifer Commemorative Clinic, 2011: 14-16).
Crown offices are similarly guided by “pro-prosecution” policies that require the prosecution of domestic violence cases where there is sufficient evidence to support a conviction, regardless of the complainant’s wishes. Crown counsel are instructed to evaluate requests from complainants to discontinue a prosecution with great caution given the “intolerable pressure” a complainant may face to have the charges withdrawn (Ministry of the Attorney General (Ont), 2005: 2; Department of Justice, 2003).
The Crown Policy Manual in Ontario makes clear that the recommended practices with respect to withdrawing and resolving charges apply to cases of family violence just as they do to all other types of charges. In considering whether to continue any prosecution, Crown counsel must consider whether there is a “reasonable prospect of conviction” and whether prosecution is in the public interest (Ministry of the Attorney General (Ont), 2005b). The policy manual notes, however, that public interest factors in the domestic violence cases should be “weighed in light of the predominant need to protect the victim. Given the prevalence and danger of spouse/partner abuse and the dangers inherent in it, it will usually, although not always, be in the public interest to proceed with these prosecutions in cases where there is a reasonable prospect of conviction.” (Ministry of the Attorney General (Ont), 2005: 2)
The rationale underlying mandatory charging and prosecution policies is clear and the benefits considerable. Nevertheless, it remains important that complainants, who are the intended beneficiaries of such policies, are made aware of their implications:
One of the most important concerns about mandatory charging is that many women simply do not know that once they call the police (or, the police are called by a third party, such as a child or a neighbour) they will lose control over what happens. Many women call the police because they need assistance in the moment, but have no intention of having their partner charged with a criminal offence. (Barbra Schlifer Commemorative Clinic, 2011: Appendix A, p. 17)
Where there is an opportunity to do so, counsel can address this concern by advising a potential complainant that:
- The accused will be charged where the police believe there are reasonable grounds to believe that an offence has been committed;
- Depending on the jurisdiction, the accused will likely be held in police custody, usually overnight, for a bail hearing;
- If the accused is released on bail pending trial, he or she will be subject to strict conditions;
- Those conditions will likely severely restrict, or even prohibit, contact with the complainant and will likely also restrict access to the family home and may regulate access to the children;
- The bail conditions will remain in place until the matter is resolved – where a trial is involved, that could be a year or more from the date of arrest; and
- The Crown is unlikely to withdraw the criminal charge based only on the wishes of the complainant.
These may be welcome consequences where a complainant wants to put an end to an abusive relationship. They may, however, give a client pause where he or she is contemplating making a complaint to police out of frustration rather than fear or for the purpose of gaining an advantage in the family law proceedings. On this note, counsel must be careful to avoid any suggestion that a client should pursue criminal charges as a strategy to gain advantage in any contemplated or on-going civil proceedings (Law Society of Upper Canada, 2001: Rule 4.01(2)(1); Law Society of British Columbia, 2011: Chapter 4, Rule 2).
3.1.3 Family Law Options
Criminal lawyers who are advising a potential complainant should advise the client to seek advice from a family lawyer. A family lawyer can advise on other options open to the complainant in addition to, or instead of, pursuing a criminal charge. A family lawyer can provide a complainant with advice on the desirability and practicality of obtaining:
- a restraining order
- an order for exclusive possession of the home;
- an interim order for sole custody of the child(ren);
- an order for emergency support when the complainant is financially dependent on the accused; and/or
- a preservation order if there is a concern that the accused may attempt to hide or dissipate assets in the wake of a separation.
3.2 Interviewing Child Complainants
Despite the prevalence of child abuse, this crime remains difficult to prosecute. Children are often hesitant to testify in court against a loved one and, because the abuse occurs in private, there are rarely witnesses or other corroborating evidence. Properly presenting a child’s evidence in cases involving family violence requires taking the appropriate steps at the beginning stages of any investigation, even before an arrest is made.
3.2.1 Obtaining Videotaped Statements
Pursuant to s. 715.1 of the Criminal Code, courts can admit video-recorded statements as part or all of a child witness’ evidence in-chief if (a) the statement was made within a reasonable time after the alleged offence, (b) the witness is available for cross-examination and (c) using the video statement would not interfere with the proper administration of justice. What constitutes a reasonable time will depend on all the circumstances and in making the determination a court will consider that it is not unusual for a child to delay the disclosure of abuse (R. v. L.(D.O.), 1993).
The Criminal Justice Act (1991) (England and Wales) allows video-recorded interviews with children to be used as the child's evidence in chief in criminal prosecutions. A 1995 study of 640 trials where an application was made to use a child's video-taped statement showed that there was no significant difference in the proportion of guilty verdicts between video-taped evidence and live examination in chief but children were much less anxious during the video-taped interviews than while giving live evidence at trial. (G. Davies, et al., 1995)
According to the Supreme Court of Canada, the primary goal of this provision is to “create a record of what is probably the best recollection of the event that will be of inestimable assistance in ascertaining the truth.” A secondary objective is to “prevent or reduce materially the likelihood of inflicting further injury upon a child as a result of participating in court proceedings.” (R. v. F.(C.C.),1997: paras. 21-22)
Taking steps to preserve a child’s early account of alleged events can thus have a significant impact both on the effectiveness of any subsequent prosecution and on the well-being of the child.
3.2.2 Child-Centred Facilities
The video recording produced from the initial interview can be used not only in the criminal proceeding but also for child protection proceedings. This reduces the trauma children experience in having to repeatedly talk about painful events. In the course of an investigation of family violence, children may be subjected to multiple interviews over extended periods of time by police, social workers, doctors and prosecutors.
Multiple interviews are potentially harmful both to the child, as he or she is required to repeatedly recount traumatic events, and to the reliability of that child's evidence. “Even when a repeatedly interviewed child is able to give accurate testimony, a belief that the child is giving over-rehearsed or contaminated evidence may diminish the child’s credibility in the eyes of the court. Multiple interviews may also diminish the child’s confidence and co-operation. In extreme cases, multiple interviews can amount to systems abuse.” (Australian Law Reform Commission, 1997: §14.28).
Ideally, the investigative interview will be conducted in a child-centred environment by someone skilled in interviewing children and will be attended by representatives of both the police and any relevant child protection agency. Facilities like the Zebra Child Protection Centre in Edmonton and The Gate House in Toronto offer child friendly environments and provide state-of-the-art video recording equipment for use by police and child protection workers. By allowing for the integration of law enforcement and social service agencies, these types of facilities serve children by permitting the more efficient gathering of information, minimizing the number of interviews and repetition of questions faced by the child and creating greater communication and information sharing between agencies. The objective is twofold; less trauma for the child and better outcomes in criminal and civil proceedings. It should be noted, however, that joint investigative procedures on the part of the police and the child protection authorities will have implications for the Crown’s disclosure obligations (see further discussion in section 5.5).
 In Ontario, see, e.g. s. 35 of the Children’s Law Reform Act (CLRA) and s. 46 of the Family Law Act (FLA).
 Section 24(3)(f) of the Family Law Act (FLA), R.S.O. 1990, Chapter F.3 expressly provides that one of the considerations in determining whether a party should have exclusive possession of the matrimonial is “any violence committed by a spouse against the other spouse or children.”
 See, e.g., s. 12 of the FLA.
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