Best Practices where there is Family Violence (Criminal Law Perspective)

4. Arrest and Bail

4.1 Introduction

The dangers faced by victims of domestic violence at the time of separation are well-established. According to psychologist Peter Jaffe, director of the Centre for Research on Violence Against Women and Children at the University of Western Ontario and a member of the Ontario chief coroners’ Domestic Violence Death Review Committee, 80% of domestic homicides happen at the point of separation or shortly thereafter. Actual or imminent separation is one of the most common risk factors present in cases of domestic homicides. The abused spouse may be at risk even where a complaint has been made to police and the perpetrator is subject to bail conditions. Indeed, the risk of harm may increase on external intervention by police and/or the criminal courts (Ministry of the Attorney General (BC), 2011: 1).

“The inquests into the deaths of Gillian Hadley and Arlene May and the Commission of Inquiry into the death of Rhonda Lavoie provide but three of many horrific examples of what can happen when the cycle of violence is permitted to spin out of control. All three cases involved murder-suicides. All three cases involved a history of domestic violence leading up to the catastrophic event where various anemic bail conditions on release and re-release did not provide appropriate protection to the female spouse. In each case, the recommendations identified the failures of the bail system as a major component in the criminal justice system’s failure to adequately address the dynamic apparent in these relationships.” (Saull, 2008: 10-11)

These concerns have informed policies and directives to Crown prosecutors to exercise caution in consenting to the release of an accused charged with an offence involving family violence. The murders of women like Arlene May and Gillian Hadley – both killed by estranged partners on bail at the time of the murders – demonstrate how crucial it is for Crowns and courts to have an adequate understanding of the risk presented by an accused before making a determination about release pending trial.

Balanced against these concerns, however, must be a recognition that in the often emotional context of a family breakdown, allegations of violence made by one spouse against another can be exaggerated or even fabricated. In such cases, restrictive bail conditions may not be necessary. Moreover, as Justice Pugsley described in Shaw v. Shaw such conditions can negatively affect the proper adjudication of related family law matters:

Family courts decide custody and access issues on the basis of statute and case law defining the best interests of the children.  The criminal justice system pays no attention to such interests because it is not geared up to do so nor are the participants widely trained in how the actions of the system — from the officer who refuses to release the defendant at the station, to the duty counsel who allows the defendant to agree to inappropriate conditions of release out of expediency — effect the lives of the members of the defendant’s family.  Similarly the Superior Court is tasked with the duty of adjudicating the respective rights of the parties to remain in the matrimonial home pending the resolution of the matrimonial litigation.  Routine orders excluding a party from the common home of the parties until the end of the criminal matter without thought to the consequences thereof, and without a remedy short of a bail review, place one party in a position of immediate superiority over the other party for as long as it takes (perhaps a year) for defended criminal charges to be resolved.  Such rote treatment of all matters of domestic assault can lead, on the one hand, to concocted or exaggerated claims of criminal behaviour or, on the other hand, to innocent defendants pleading guilty at an early stage out of expediency or a shared desire with the complainant to start to rehabilitate the family unit (Shaw v. Shaw, 2008: para. 5).

It is in this context, where legitimate safety concerns must be balanced against unnecessary restrictions on the liberty of an accused and disruptions to his or her family, that bail decisions are made. Below we attempt to identify best practices aimed at balancing these competing concerns.

4.2 Bail Basics

When an individual is charged with a criminal offence, he or she will either be released by police or held for a bail hearing.

Sections 496, 497, 498, 499 and 503 of the Criminal Code govern the manner in which the police may release an accused person and compel his or her subsequent appearance in court.

4.2.1 Summons and Appearance Notices

Where the police do not arrest an accused, attendance at court can be compelled by an Appearance Notice (issued by police and later confirmed by a Justice of the Peace, when the charges are laid), or by a summons issued by a Justice of the Peace when the charges are laid. Both an appearance notice and a summons are official documents requiring a person to appear in court at a specific time and place to answer (or respond to) a criminal charge. They will generally only be used in the least serious cases where the police do not believe the accused needs to be subject to any conditions and do not have concerns that the accused will fail to attend court. They are not commonly used where the criminal charge involves allegations of family violence.

The appearance notice or summons will often require an accused to also attend the local police station on a certain date in advance of the first court appearance to have fingerprints and photographs taken. No discussion of the offence takes place at the station and an accused person does not need to be accompanied by a lawyer. Accused individuals should be aware that if they fail to go for fingerprinting or fail to attend court on the date specified, they can be arrested and charged with the criminal offence of failing to appear (s. 145(4)-(10)).

4.2.2 Promise to Appear and Recognizance

If the accused is arrested without a warrant, the Criminal Code requires the arresting officer (s. 497) or the Officer-In-Charge of the police custody facility (s. 498) to assess whether detention is required to:

An officer may also detain an accused where he or she has reason to believe that, if the person is released from custody, the person will fail to attend court.

If detention is not required, police must release the accused from the station. In making this assessment, the police typically consider the personal history of the accused (any prior breaches, education, family, and employment), the circumstances of the specific charge, and the complainant’s wishes. An accused person who is not released by the police is to be brought before a court for a judicial interim release (“bail”) hearing within 24 hours, or “as soon as possible” thereafter (s. 503). Bail practices are considered in detail below.

An accused person who is arrested without a warrant and not held for a bail hearing may be released by police on 1) an appearance notice or with the intention of having a summons issued; 2) a promise to appear; or 3) on a recognizance. A promise to appear or a recognizance are the only methods available where the arrest is made with a warrant (s. 499).

The appearance notice and summons are described above. The promise to appear is similar to an appearance notice but it must be signed by the accused. A recognizance requires an accused to follow certain conditions with a financial penalty – to a maximum of $500 – if they are not followed. The recognizance may or may not require a deposit of the pledged money.

Both a promise to appear and a recognizance can be accompanied by an undertaking (in Form 11.1) made to the police to abide by certain conditions while the accused person is on a release (s. 499 and 503). An undertaking can have one or more of the following conditions:

Failure to comply with the undertaking is a criminal offence (s. 145(5.1)).

4.2.3 Held for Bail Hearing

Many individuals charged with offences relating to allegations of domestic violence are not released from the police station. Instead they are held for a “show cause” hearing. In some jurisdictions, there is an “unwritten policy” within police services that all accused charged with domestic violence related offences will be held for a bail hearing. These sorts of policies do not accord with the obligations of police officers under the Code which require the police to consider release pursuant to s. 498 and 499. Notably, in R. v. Rashid, 2009, the trial judge found a breach of section 9 of the Charter when the arresting officer failed to consider whether a release from the station was appropriate and acted, instead, pursuant to a blanket policy requiring detention in domestic violence cases irrespective of the accused’s personal circumstances or the nature of the office.

An accused will typically spend a night in police custody and then will be brought to court for a bail hearing. The accused may spend more time in custody if he or she is arrested on a weekend or requires time to retain a lawyer and identify sureties.[4] At court, the Crown may either consent to the accused’s release subject to specified conditions or can oppose the accused’s release. Where the Crown is opposed to release, there will be a contested bail hearing that takes place before a justice of the peace.

Pursuant to s. 515 of the Criminal Code, an accused will be released pending trial unless the prosecutor “shows cause” why the detention of the accused is necessary. The Crown can seek an accused’s detention on one of three grounds:

In certain situations specified in the Criminal Code, the onus is reversed and the accused must show cause why he should not be detained. For example, the onus will be on the accused where he is charged with failing to comply with a condition of a recognizance or undertaking, while he was on release for an earlier charge that is still pending (s. 515(6)).

4.3 Crown Approach to Bail in Cases of Alleged Family Violence

Public safety grounds are, not surprisingly, of significant concern in the context of allegations of domestic violence. In response to tragic deaths in several high profile cases and a growing understanding of the dynamics of family violence, many Crown offices have developed specific policies in respect of bail practice and procedure in cases of domestic violence. In the exercise of prosecutorial discretion in cases of domestic violence, the safety of the complaint and his or her family will be the paramount factor for the Crown to consider.

In Ontario, Crowns are guided in their exercise of discretion by the guidelines contained in the Crown Policy manual. The manual, like the guidebooks in other provinces, directs Crowns to consider detailed risk assessments conducted by the police at the time of arrest. Factors that will be considered by the Crown  include:

The Crown needs sufficient information about these factors in order to make an informed decision about whether to seek an accused’s detention. Similarly, the court will need the same information in order to make a determination as to whether detention is necessary and to craft appropriate conditions in cases where the accused is released (R. v. E.M.B., 2000). Accordingly, it is critical that Crown offices establish protocols with local police services in respect of ensuring Crowns have sufficient information to conduct a bail hearing. In Ontario, that information sharing occurs by way of mandatory “risk assessment checklist” and form. The value of the risk assessment, of course, depends on the reliability of the information that informs it. Police must be trained to properly complete the form (How, 2012).

4.3.1 Collecting Information for Bail Hearings

As Justice Hill explained in R. v. Villota, citing the Report of the Commission on Systemic Racism in the Ontario Criminal Justice System, Crown counsel have “enormous control over information about the offence and are required to assume a leadership role in bail hearings to secure justice in the bail system.” (R. v. Villota, 2002: para. 70)

The challenges faced by Crown counsel at bail hearings are significant and the stakes high. The obligation to ensure the court has adequate information to make a decision about release will fall primarily on the Crown. Crown offices in many jurisdictions have developed policy guidelines and directives to assist prosecutors in fulfilling this role in the context of busy bail courts.

Numerous stakeholders interviewed in the course of preparing this report indicated how beneficial it would be for a criminal court – particularly a bail court – to have access to family court and child protection orders. Relying on the accused and the complainant to convey accurate information about the existence and status of civil proceedings was not viewed as sufficient. Helen How, Deputy Crown Attorney in Toronto, believes that the lack of access to court documents between the criminal and civil proceedings is one of the greatest challenges facing domestic prosecutions. Ms. How indicates that she only sees a family court order if it is provided by a complainant (How, 2012). Justice Bovard, who helped to create Toronto’s integrated domestic violence court and has written and lectured extensively on the topic of the intersection of criminal and family law, similarly believes it would be beneficial for criminal courts to have access to “FRANK” the case tracking system in Ontario developed to address the management of information in civil cases.

The information management system in Ontario was the subject of recent criticism in the judgment of Justice Brown in Romspen Investment Corp. v. 6176666 Canada Ltée. In colourful language, Justice Brown attacked what he called the antiquated document management and case scheduling system of the Ontario courts:

I suppose that on a sunny, unusually warm, mid-March day one should be mellow and accept, without complaint, the systemic failures and delay of this Court’s document management system.  The problem is that from the perspective of the members of the public who use this Court, delays caused by our antiquated, wholly-inadequate document management system impose unnecessary, but all too real, costs on them.  And yet the entity that operates that part of the Court’s administration system – the Court Services Division of the Ministry of the Attorney General – seems completely indifferent to the unnecessary costs it is causing to the members of the public who use our Court (Romspen, 2012 at para. 1).

Though made in the context of a decision about a commercial dispute, the short comings of the paper-based document management highlighted by Justice Brown may be equally applicable to cases involving family violence. A court system “under which documents were filed electronically and accessible to judges and others through a web-based system, with sealed documents specially encrypted to limit access to judges only” would no doubt facilitate better informed judicial determinations in family law, criminal and child protection proceedings.

In some jurisdictions, family and criminal courts have developed protocols for information sharing. For example, Lanark County, Ontario, has created a formal protocol for domestic violence cases involving criminal and family courts (Goldberg, 2011: 53). These types of protocols help to ensure the criminal court has accurate information about pending family law proceedings before making a bail order.

4.4 Common Bail Conditions

A court granting bail and deciding on terms of release should be aware of the following:

In cases involving allegations of family violence, the most common terms of release include: “no-contact” conditions in respect of the complainant; a “no-go” term restricting the accused from attending within a specified distance of the complainant’s home and work place; restrictions on access to the children of the complainant; an abstain from drugs and alcohol clause and a weapons prohibition.

The terms of release in respect of communication and access to children are the most difficult to draft and often have the most impact on parallel family law proceedings. Justice Bovard explains the difficulties that can arise from restrictive bail conditions imposed in cases where an allegation of domestic violence has been made:

Family law cases are quite complex and the dynamic is often in flux; things change rapidly and the Family Court has to be able to react to these changes in a meaningful way without being encumbered by bail orders that tie its hand behind its back. Bail conditions can last a long time and this makes it almost impossible to deal with issues that come up regarding the welfare of children and access and support issues. People need to contact each other to deal with these issues. It is especially important to resolve issues that touch on the best interest of children in the most efficient manner. This is difficult, if not impossible, to do if the parents are not allowed to contact each other (Bovard, 2009).

In this section of the report, we review typical bail conditions, identify potential problems with the wording chosen and provide suggestions for better practices.

4.4.1 “No contact directly or indirectly with the complainant except through a mutually agreeable third-party or pursuant to a Family Court order and only for purposes of arranging and facilitating child access.”

The wording of this condition properly avoids the “blanket” prohibition on communication that Justice Bovard and others have counseled against. For that reason it enjoys significant advantages over a condition that requires spouses to absolutely refrain from contact (e.g. “abstain from communicating directly or indirectly with the complainant”). Absolute prohibitions are likely to prevent any progress being made in parallel family law or child protection proceedings and may be inconsistent with family court orders in respect of custody and access.

However, there remain some difficulties with the wording. First, a bail condition that requires the complainant’s consent to appoint a “neutral” third party to assist with contact and access to the children may put pressure on the complainant to agree, could enhance any existing power imbalance and create another source of tension in the relationship. A better solution may involve requiring a surety or officer-in-charge to agree to the third party (Bovard, 2012).

Second, arranging and facilitating access to children may be frustrated even where bail conditions permit communication through a third party. For example, the inability of an accused who is exercising her access rights to the children to notify the complainant of unexpected lateness or emergency situations may result in further tension between the accused and the complainant or even further police involvement. For this reason, in appropriate cases, a court may wish to consider whether a non-communication condition could include an exception for “contact by e-mail or text message, the contents of which are limited to arrangement related to access to children only.”

This sort of exception to the non-communication order may not be appropriate in cases involving serious allegations of violence, where the complainant does not feel safe having any contact with the accused. In many more minor cases, however, such an exception may be beneficial.

Third, the condition set out above does not allow for contact between the accused and the complainant through counsel or for any purpose other than facilitating access to the children. Ongoing family law proceedings will be effectively put on hold if the parties are not allowed to communicate in any way, even through their respective family law counsel.

4.4.2 “Contact with children to be exercised under the supervision of the child protection agency or pursuant to the order of a court of competent jurisdiction.”

Crafting appropriate terms of release relating to the accused’s access to his or her children presents a significant challenge for the criminal courts:

Termination of contact between parents and children can seriously – and often detrimentally – affect their lifelong relationship. No-contact orders can also impede counselling or other efforts to address the underlying issues facing the family, and can prevent any meaningful assessment of whether regular contact is in the child’s best interest. Further, it can be very difficult to change release conditions once they are made; no-contact bail orders can remain in place for a year or more in some cases, despite every effort of child protection agencies to change them. For these reasons, judges may prefer to craft conditions of release that allow for child protection authorities and/or family courts to determine whether access should occur and under what circumstances (Goldberg, 2012: 54).

There are a number of factors to consider in deciding on appropriate terms of release including the circumstances of the offence and whether or not the child is the complainant or a witness in respect of the alleged offence.

In cases where the child is the complainant or a witness, a complete prohibition on communication may be necessary pending trial. Strict no contact provisions are informed by concerns that 1) contact between an accused parent and a child complainant will give rise (even subconsciously) to feelings of guilt or doubt that could affect the child’s ability and willingness to testify truthfully; and 2) an accused may attempt to influence the child’s evidence. The prosecution may oppose a condition that permits a family court order to allow access to the child. The objective of the family court is the best interests of the child, but that court may not have sufficient information about the underlying criminal charge or the emotional conflict that can ensue from having to testify in court (Witkin, 2007: 2; Joseph & Stangarone, 2009: 2-3). Ms. How explains that she is cautious about relying on family court orders when crafting bail conditions because of the different goals of the family and criminal court proceedings. In her view, civil proceedings are often aimed at reunification of the family while criminal proceedings focus on safety issues and ensuring an effective prosecution (How, 2012).

The concerns of the Crown regarding delegating contact decisions to a family court may be alleviated by a condition in the bail directing the family court to consider the criminal charges when making an order for contact (Goldberg, 2011: 54).

In cases of allegations of spousal assault that do not involve the children as complainants or witnesses, the justification for strict no-contact provisions is attenuated. Where a child is in no danger from the accused parent, separation for a significant length of time can needlessly result in unnecessary damage to the parent-child relationship. In these situations, a requirement that contact be supervised by a child protection agency may not be appropriate or necessary. Child protection agencies have limited resources to supervise parental access visits. Accordingly contact between the accused parent and the child may be restricted not because of any safety concerns but simply because of a lack of resources.

The condition set out above, which would permit contact with children under the supervision of the child protection agency or pursuant to the order of a court of competent jurisdiction is troublesome in that it could result in conflicting orders between the Children’s Aid Society (CAS) and the family court.

Moreover, as Justice Bovard explains, CAS may not be willing to act in a supervisory role. Child protection agencies that are not involved with the family may object to being involved in enforcing bail orders and take the position it is not within the agency’s mandate to supervise access for all parents involved in the criminal justice system. Even where CAS is prepared to supervise, the access facilitated may be sporadic, at best. There are resource issues which severely limit the amount of supervised access that is available. For these reasons, in Justice Bovard’s view, the Family Court is really in the best position to consider all of the circumstances when deciding questions of access and to make a determination that is in the child’s best interest.  Justice Bovard’s sentiments are echoed by Kate Kehoe:

Child protection authorities have a specific legislative mandate to ensure the safety and well-being of children, and can provide services to the family to alleviate protection concerns. However, orders which only provide for access as directed by the child protection authorities do not permit any variation in cases where the family court judge is of the opinion that the child protection authorities are not exercising their discretion in the best interests of the children. Further, orders which provide for access “supervised by the child protection authority” can place the child protection authority in a difficult position.  In some cases, the agency may not have grounds to bring the matter before the court or may be of the view that the safety of the child can be ensured without a court order (perhaps with a family member or access centre providing the supervision). However, child protection agencies are often not funded by their governing bodies to supervise access except where such access is court-ordered. The agency will therefore be forced to commence litigation solely for the purpose of carrying out the order made by the criminal court (Kehoe: 4).

There appears to be some consensus that child protection agencies should not be mandated by bail conditions to supervise access. However, where a court nevertheless wishes to impose this sort of condition, it may be beneficial to include a term specifying the minimum amount of access that is to be facilitated (e.g. “contact with children to be exercised under the supervision of the child protection agency and not to occur less than once per week”). While this does not address all of the concerns noted above, it does ensure some consistent access to the children for an accused parent.

4.4.3 “Contact with children pursuant to a Family Court order that post-dates the date of this order” “Contact with children pursuant to a Family Court order”

Where the bail includes a condition that contact with children is permitted pursuant to a family court order, the term should specify that the family court order be one that post dates the bail order. A family court order made before the arrest of the accused may no longer be appropriate in light of the criminal allegations. For example, a family court order allowing for generous access for a non-custodial parent should not continue to govern when the parent has been charged with assaulting the child. Justice Bovard suggests that the term “post-dates” is unnecessarily confusing to many accused persons. This could be replaced with “made after this bail order.”

If a court determines that it is necessary to have a condition limiting contact between an accused and his or her children, the condition “Contact with children pursuant to a Family court order that post-dates the date of this order” is likely the best option available. The difficulty with even this sort of provision, however, arises from the practical realities of obtaining a family court order which can impose significant barriers to access for an accused parent. Justice Bovard explains that an application for access made to a family court can take several months to be heard during which time the accused parent and the child cannot have contact. Delays can be even longer if either or both parents are unrepresented. According to Justice Bovard up to 70% of litigants in Ontario Court of Justice family matters are unrepresented (Bovard, 2012). In some cases the resulting delay in contact between parent and child cannot be safely avoided, however a total prohibition on contact will not be necessary in all cases.

A busy justice of the peace in a busy provincial court house is unlikely to have sufficient information at a bail hearing – including reliable information on the dynamics in the family and the historic relationships between parents and children – to make an appropriate access decision. It is in this context that a bail court must undertake the difficult task of assessing the risk presented to children or other family members with little information and little knowledge as to how the family will be dealt with by other courts.  Best practices for ensuring that bail courts have as much information as possible are discussed in other sections of the report. Where, having considered the available information, the bail court is satisfied that there is no apparent danger associated with the children having contact with the accused, any decisions about access and custody may be best left to the family court. We note, however, that where the terms of bail do not address access issues there may be a period of time where no court order is in place governing the interaction between an accused parent and a child.

4.5 Defence Counsel / Duty Counsel Approach to Bail

4.5.1 Ensuring Reasonable Bail Conditions

Being detained, particularly for an accused person who has never had any previous experience in the criminal justice system, can impose an intolerable amount of pressure on an individual – and may result in an unwarranted guilty plea. Negotiating a speedy release for a client is therefore critical. It is equally important, however, that the client be willing and able to comply with the bail conditions imposed. It will be difficult to vary conditions agreed to in an effort to get out of custody quickly, particularly where the conditions were negotiated by experienced defence counsel. In R. v. Bain, for example, the accused ex-husband was released on the consent of the Crown with conditions including that he not attend within 200 metres of the matrimonial home. This term was included in the recognizance of bail despite the fact that at the time of his arrest, the accused was residing in that home, the complainant was living in another residence and the two were in the process of litigating the issue of possession of the matrimonial home in family court. Justice Shaw held that it was not role of the criminal courts to vary the accused’s conditions of bail in order to “level the playing field” in the family court proceedings (R. v. Bain, 2009: para. 13).

In addition to the issues addressed above relating to communication with the complainant and access to children, defence counsel should also ensure that the bail conditions do not place an accused at any more of a disadvantage in the family law proceedings than absolutely necessary. Counsel should ensure, for example, that the accused is permitted to return to the matrimonial home, in the company of police, to obtain personal items. If family law proceedings are initiated (including custody, access or support application), the accused will need personal and financial documents, including bank statements, tax returns, pay stubs, passport, etc. Terms of the bail that restrict access to the family home can also amount to de facto orders for the exclusive possession of the family home. Similarly, restrictions on contact with children imposed by the bail order can result in the creation of a “status quo” in relation to issues of custody and access.

4.5.2 Checklist for Defence Counsel and Duty Counsel

As set out above, risk assessments play a significant role in the exercise of Crown discretion in domestic violence cases, including bail decisions. Defence counsel must be prepared to deal with this approach and be able to respond to and address Crown counsel’s concerns. Defence counsel will be in a better position to negotiate workable terms of release where he or she has the following information:

An accused at a bail hearing is often being assisted by duty counsel who has no previous relationship with the accused and limited ability to find out the answers to these questions. Duty counsel should find out from the accused whether he or she has a family lawyer or a lawyer in relation to child protection proceedings. Counsel in these matters can be an invaluable source of information on short notice.

It is important to note that in many cases an accused person charged with a domestic violence offence will remain unrepresented by counsel throughout the criminal proceedings. As Ms. How explains, in Ontario, individuals will not qualify for legal aid unless there is a risk they will be sentenced to a term of imprisonment if found guilty and they meet strict financial eligibility guidelines (How, 2012).

The Crown, with the assistance of the investigating police force, is likely to have compiled background information including prior incidents, complainant input and risk assessments. Where the Crown wishes to rely on this information in the course of the bail hearing, it must be disclosed to the accused. Duty counsel should examine this material and discuss it with the accused before the hearing if at all possible (Legal Aid Ontario: 49).

Actuarial risk assessment tools, such as the Ontario Domestic Assault Risk Assessment (ODARA), may be completed by police and provided to the Crown in advance of the bail hearing. Risk assessment results and reports are not admissible as evidence unless an expert witness is called who can interpret the report and express an opinion in regard to its validity as a predictor of behaviour. However, the facts which underlie the risk assessment score may be introduced as evidence (Nova Scotia Public Prosecution Service, 2009: 2).

In many jurisdictions Crown counsel will take a conservative approach to bail in cases of domestic violence. The Crown may seek detention even where there is no criminal record and no outstanding charges. Where the Crown consents to the accused person’s release it is often only where the terms of release require the accused to reside with a surety. The bail handbook developed by Legal Aid Ontario for duty counsel reminds duty counsel that, in this context, it will often to fall to duty counsel to protect the record and “repeatedly remind the court of the requirements of s. 515 of the Code” which places the onus on the Crown to show cause for each increasingly restrictive form of release. The range of cases that involve allegations of “domestic  violence” varies widely. The tendency to lump all such cases together and insist on the same stringent bail conditions in all cases must be resisted. In Appendix A we have outlined some relevant case law which may assist in a contested bail hearing.

Counsel representing an accused at a bail hearing should ensure, if possible, that the terms of release:

4.5.3 Advising a Client after Release

An individual who is accused of a domestic offence and has spent a night in custody often experiences a certain shock at the reality of his or her situation. That state of shock can make it difficult for the individual to take the necessary steps to address the numerous and pressing issues relating to both the family and criminal proceedings.

Defence counsel should advise the client to retain family law counsel as soon as possible and provide the names of referrals. The accused may need to respond to emergency motions brought without notice by the complainant or may need to bring his or her own applications. For instance, the accused may consider making one of the  following emergency applications in order to protect his or her relationship with the children and prevent the creation of a “status quo” in respect of custody and possession of the matrimonial home:

Where an accused is unable to retain counsel for the family law matter, defence counsel may wish to point the client to the resources available for unrepresented litigants.

In order to allow for the effective drafting of applications and responses, family counsel should be made aware of the nature of the criminal allegations against the accused and any bail conditions imposed. Where affidavits are prepared in support of the applications or responses, it is good practice to have the contents reviewed by criminal counsel. As will be discussed in greater detail below, the contents of materials filed in family court proceedings can make exceptional fodder for cross-examination at a criminal trial. An accused and a complainant must ensure that statements made and positions taken in the family law context are not inconsistent with those made and taken in the criminal courts.

4.6 Bail Violations

4.6.1 Advice to Accused

Client management and proper explanation of the consequences of breaching a bail condition are crucial. Clients need to know that if they breach a condition of bail (or an undertaking given to the police), they will end up back in custody and that bail will be significantly more difficult to obtain in the face of breach charges, particularly in light of the reverse onus provisions (s. 145 and s. 515(6)(c)). While the concept seems simple, the dynamics at play in cases of allegations of domestic violence often add complications.

Clients are likely to become frustrated with the slow pace of the criminal justice system and will want to resume communication, and even cohabitation with the complainant. A complainant who shares those desires can exercise considerable pressure on an accused.

Clients should be advised to resist temptation. Anecdotal experience suggests that where the accused and complainant do resume contact, discussions often escalate into disagreements about the pending charges and may result in a breach of bail charge. Clients should be advised that even contact initiated by the complainant will violate the terms of bail and that the accused is obligated to terminate contact immediately. Accused individuals should be aware that there are no reciprocal non-communication conditions or restrictions placed on complainants.

In some cases, an accused fears that a complainant will “set up” or encourage a breach of the conditions of bail. In these situations, an accused should be advised to keep a journal or diary of his/her activities and to record telephone message/texts/emails from the complainant.

Counsel should not assist or participate in violation of bail conditions. That means counsel cannot turn a blind eye when a client who is subject to a non-communication order comes to the lawyer’s office with complainant in tow. Instead, counsel should take immediate steps to address the issue.

In Ontario, the Crown policy manual mandates that where there is a breach of a no-contact order condition of bail in the domestic violence situation, “Crown counsel should apply for revocation [of the original bail] and seek a detention order.” Where a Crown exercises his or her discretion otherwise and does not seek detention, he or she must make a written explanation in the file (Ministry of the Attorney General (Ont), 2005).

Because a breach of a court order is an identified risk factor for future violence, it is important for Crown Counsel to consider laying charges, where appropriate, for breaches of bail orders. The Crown may choose to proceed on these charges even if the substantive charge is ultimately not prosecuted, especially in situations identified as high risk. Convictions for breaches will inform risk assessments at future bail and sentencing hearings (Ministry of the Attorney General (BC), 2011: 3).

4.6.2 Advice to Complainants

Complainants should be made aware of restrictions on the accused – either by the Crown, the police, or victim services. A complainant should be made aware that where there is a “no-contact” term of bail, an accused is not permitted to resume contact with the complainant, even with the complainant’s consent.  Complainants who wish to resume communication and/or do not want the criminal court proceedings against their spouse to continue should be advised to seek independent legal advice (see further discussion below in 4.7.1.2).

Complainants should be made aware of what constitutes a breach of recognizance and the importance of reporting breaches to the police. The complainant may wish to keep a diary of any attempted contact or communication by an accused.

4.7 Bail Variations

An accused seeking a bail variation increases his or her chances of success by approaching the Crown with a realistic variation supported by the requisite information (including input from the complainant, confirmation of family court orders, etc.). While best practices for obtaining a bail variation will depend to a large extent on the unique circumstances of each case, for ease of consideration, we have divided domestic assault cases into two types: those where the complainant is cooperative and those where the complainant is adversarial. This division is merely practical but it affects how the case will be addressed at the bail variation stage and what information should be provided to a complainant and accused.

4.7.1 Where the Complainant Supports a Bail Variation

These cases typically involve a domestic relationship where, post-arrest, the complainant and defendant want to reconcile. This type of case is not limited to those where the complainant recants or changes his or her version of events; in some cases, the complainant maintains the accuracy of the allegation, but nonetheless wants to reconcile with the accused.

In these circumstances, bail conditions can cause hardship for both an accused and the complainant. As discussed above, an accused may be removed from his or her house, prevented from seeing and at times speaking with his or her children. Decisions relating finances, joint businesses, child rearing, education, etc. are put on hold.

Bail variations will form part of a plan to resolve these cases. In cases of family violence, there are three general plans to deal with the case: 1) a guilty plea, where the client is prepared to admit guilt; 2) resolution through a peace bond, diversion or withdrawal; or 3) a trial, where the client maintains innocence.[6]

4.7.1.1 Bail Variations in Anticipation of a Guilty Plea

Where the case is dealt with through a guilty plea in association with participation in a treatment program, bail variations are generally standard graduated variations that are tied to progress in the counselling program. Often, a client will plead guilty and have their sentencing adjourned to proceed after the completion of the program.  In these cases, a bail variation is often granted that allows full contact between the defendant and the complainant subject to the “written, revocable consent” of the complainant.

The complainant’s written revocable consent for contact is to be filed either with the Crown’s office or with the Courthouse Probation office.  Both the accused and the complainant should be aware that the complainant may revoke his or her consent verbally at any time and that the revocation does not require any grounds, nor does it require the office with which the consent is filed to be notified to take effect. Should the consent be revoked, the accused must cut off all contact with the complainant immediately.

4.7.1.2 Peace bonds and Withdrawals

Generally, Crown Policy is not in favour of withdrawing domestic assault charges or resolving them by way of peace bond apart from cases where there is little prospect of conviction. Clients need to understand that efforts undertaken to seek a withdrawal or peace bond are not guaranteed and the Crown may legitimately decide to continue with a prosecution notwithstanding the efforts undertaken by all parties. Where the complainant is co-operative and the client wishes to seek a peace bond or withdrawal resolution of the charges, counsel may wish to consider the following steps:

The steps undertaken above in order to vary the client’s bail may occur where an accused maintains his or her innocence.  However, the scope of any counselling will necessarily be circumscribed by the fact that the client denies any assaultive behaviour.  Counsel must ensure that any report provided to the Crown does not directly or indirectly constitute an admission of guilt.

4.7.2 Where the Complainant Opposes a Bail Variation

Sometimes, the parties have no intention of resuming the relationship and the complainant does not support a bail variation. These cases are generally, though not always, more adversarial in nature.

4.7.3 Bail Variations versus Bail Reviews

The terms of a bail order do not have to remain fixed throughout the course of the criminal proceedings. However, once bail is granted (or denied), no other judge or justice of the peace at the provincial court level can review that decision or the conditions of bail imposed by the original judge or justice. A provincial court judge or justice can only modify an existing bail condition with the agreement of the Crown prosecutor. Otherwise, an accused person must bring a formal application to review the bail conditions before a judge in the Superior Court of Justice.

As described above, the Crown may agree to vary the conditions of bail to allow for more contact between the accused and complainant in order to facilitate in counseling. Crown counsel may agree to other variations to curfew or house arrest provisions to allow for attendance at school or work.

Obtaining a “consent bail variation” is the least expensive and most efficient way to modify the terms of release. Where the Crown does not agree to change the bail conditions, the only available remedy to an accused is to bring a bail review application before a Superior Court judge.

In order to be successful at the bail review, an accused person must satisfy the Superior Court that the judge or justice who imposed the original bail conditions made either an error of law or that there has been a material change in the accused person’s circumstances to warrant the change of bail conditions.

Applying for a bail review requires the filing of materials at the Superior Court including a copy of the transcript of the original bail hearing. Also required as part of the bail review application are affidavits (sworn statements) from both the accused person and any proposed sureties (in Ontario see Rule 20 of the Superior Court of Justice Criminal Proceedings Rules). The time and expense required to prepare these materials means that it can take several weeks before a bail review can be heard and may cost the accused thousands of dollars.

[4] A surety is someone who makes an agreement with the court to take responsibility for a person accused of a crime. The surety is responsible for making sure the accused person comes to court on time and on the right dates and for ensuring that the accused person obeys each condition of the bail order, also known as a recognizance. Sureties must sign the recognizance and agree to pay a specified amount of money if the accused person fails to obey the court order.

[5] Pursuant to s. 12 of the Family Law Act of Ontario, if the court considers it necessary for the protection of the other spouse's interests under this Part, the court may make an interim or final order,(a) restraining the depletion of a spouse's property; and (b) for the possession, delivering up, safekeeping and preservation of the property.

[6] These guidelines discussed in this section are adapted from an earlier paper by Joseph Di Luca, Bail Variations and Violations in the Domestic Context – The Defence Perspective, presented at the 2007 Ontario Bar Association Conference on Crime in the Family: Navigating the Intersection between Criminal and Family Law.