Toronto Domestic Assault Lawyer

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TORONTO DOMESTIC ASSAULT LAWYER

We help everyday people avoid a criminal conviction for domestic assault. Our office actively represents young professional including those employed in the financial sector, construction, banking, sales, medicine, government, public transportation, students and even retirees charged with domestic assault for their first time. Our primary objective is to confidentially deliver a fresh start.

An allegation of Domestic Assault often arises in the context of disputes with a spouse or cohabitant. These serious charges frequently arise in disputes that unexpectedly escalate between good loving people, creating an unwanted scenario for couples where the police continue to pursue charges, irrespective of the whether the complainant wishes to proceed. The Firm also has a specialized practice in Criminal Harassment allegations in the context of Domestic Relationships. It has handled a number of allegations where repeated emails, text messages and phone calls are made to a spouse or ex-lover. In the Firm’s R. v. A.C. [2016], it secured a Withdrawal of all charges of Criminal Harassment against a Hollywood Actor charged with sending over 500 emails and 100 voicemails to the complainant.

We frequently handle situations where a complainant impulsively calls the police to help defuse an escalating situation without the intention of laying charges. Once the police attend, however, charges are often still pursued. These charges further create an adverse situation where the parties can no longer communicate or live with one another, possibly for a long time. When approached by clients with charges of domestic assault in these scenarios, our ultimate goal is early, cost-efficient resolution. We specialize with legally resuming contact with your spouse or partner.

The Criminal Law Group secured a full withdrawal in its new R. v. A.Y. [2014] for Assault Causing Bodily Harm strictly on the basis of an evidentiary technicality. It further secured a withdrawal of an allegation of assault against an Investors Group Employee in its R. v. C.L. [2014] and a CIBC Employee charged with Domestic Assault in its R. v. E.T. [2014]. Recently, the Criminal Law Group even secured a withdrawal of an allegation of Sexual Assault against a Jehovah Witness in its R. v. R.K. [2014]. The Firm has specialized in defending a series of other young professionals charged with Domestic Assault, including bankers, pharmacists, TTC employees, construction and Municipal workers, real estate agents and even other members of the Law Society. In its R. v. M.M. [2015], the Firm secured a withdrawal of Assault With a Weapon against a Toronto Paralegal.

The Firm has specialized in handling a number of High Profile Domestic Assault allegations in Toronto for men, women and a number of same-sex couples. The Firm secured a withdrawal of Assault with a Weapon in its R. v. P.L. [2015], where the accused, a City of Toronto employee was charged with throwing a key at his spouse. It further secured a full withdrawal of Assault with a Weapon against two women charged with throwing mascara and a purse at their male spouse, in its R. v. P.S. [2016] and R. v. R.S. [2015].

The Firm has also specialized in handling a number of High Profile Same-Sex Domestic Assault allegations in Toronto. It secured a full withdrawal of Criminal Harassment in its R. v. R.S. [2015]. It secured a full withdrawal of Assault where both same-sex males were severely injured in a mutual fight in its R. v. M.R. [2016]. The Firm also secured a withdrawal of Assault with a Weapon where the same sex partner pulled a kitchen knife on his spouse, in its R. v. P.T. [2016].

The Criminal Law Group has extensive experience in resolve charges of Domestic Assault without a Criminal Record. We have represented City of Toronto Employees, Financial Sector Workers, Employees of Banks, Contraction Unions, Pension Funds Employees and other professionals charged with Domestic Assault.

Frequently Asked Questions

What is Domestic Assault?
What is the Difference between Domestic Assault and other allegations of Assault?
Can a Domestic Assault Charge arise between Homosexual Couples?
What are the Penalties for Domestic Assault?
What is Self-Defence?
What is a s.110 Weapons Prohibition?
Do you have to be Married to be Charged with Domestic Assault?
What is a Failure to Comply with Condition of an Undertaking or Recognizance?
What are some of the Penalties Associated with a Failure to Comply?
What is a s.743.21 Non-Communication Order?
What is a s.487.051 DNA Order?
What types of Assault are often alleged in these types of allegations?
What type of people can find themselves facing allegations of Domestic Assault?
What is Bail and a “Bail Hearing”?
How is a Bail Hearing in cases of domestic violence different from other Bail Hearings?
What is a Promise to Appear?
What is a Recognizance?
What is an Undertaking?
What kind of Conditions can be attached to an Undertaking?
What kind of Conditions can be attached to a Recognizance?
What is Bail Review?
What is a Bail Variation?
What is the difference between a Bail Variation and a Bail Review?
How can a Bail Variation be obtained?

What is Domestic Assault?

Domestic assault is an assault, as defined under section 265 of the Criminal Code that occurs in the context of an intimate relationship.

Section 265(1) of the Criminal Code sets out three scenarios that will constitute an assault:

  1. When a person intentionally applies force to another person, either directly or indirectly, without their consent.
  2. An act or gesture will constitute an assault if (1) a persons uses such an act or gesture to attempt or threaten to apply force to another person and (2) if this causes the other person to believe on reasonable grounds that the alleged attacker has the present ability to effect his purpose; or
  3. When a person accosts or impedes another person or begs, while openly wearing or carrying a weapon or an imitation thereof.

If one of the above assaults takes place in the context of an intimate relationship, it falls into the category of “domestic assault.”

What is the Difference between Domestic Assault and other allegations of Assault?

Assault covers a wide range of situations and relationships between individuals. Assaults can happen between strangers, neighbours, friends, family members or basically any other two individuals in society. Comparatively, domestic assaults are a particular category of assaults that occur between intimate partners.

Domestic assaults are treated differently by the Crown prosecutor, because of the heightened awareness around the issue. The Crown Policy Manual states that domestic assaults will be prosecuted “with vigour” and it identifies domestic abuse as a prevalent social problem. Crown policy states that given the prevalence of partner abuse and the dangers inherent in it, it will usually be in the public interest to proceed with  these prosecutions.

In some jurisdictions there are special “Domestic Violence” courts that deal with charges related to intimate partner crimes on a special date and time, separately from other criminal matters.

Can a Domestic Assault Charge arise between Homosexual Couples?

Yes, intimate relationships include those between both opposite sex and same sex partners.

What are the Penalties for Domestic Assault?

Penalties for a conviction of domestic assault will vary depending on the specific circumstances of the offence, the characteristics of the offender and complainant and the presence of any aggravating or mitigating factors.

Section 266 of the Criminal Code sets out that a conviction of assault can result in a penalty of up to five years imprisonment when the Crown proceeds by indictment. The same penalty applies to assaults in the domestic context.

However, domestic assaults do differ from other assaults because they often occur between persons who live in the same home. As such, they almost always result in the police holding a person charged with domestic assault overnight, until they can have a bail hearing in the morning. Assault charges also often involve a bail condition that the accused not communicate with the complainant, which is particularly troublesome and can be a much larger burden in the domestic context.

What is Self-Defence?

Self defence is an absolute defence the accused can raise to try and avoid liability for committing an offence. Self defence raises a “justification” defence – meaning that it challenges the wrongfulness of an action which technically constitutes a crime. In such circumstances, we consider the actions rightful, not wrongful. For example, if someone is in the process of attacking you with a weapon and you punch them in the face to stop them, this is technically an assault but it is justified in the circumstances as self defence.

Self defence is a statutory defence controlled by Section 34 of the Criminal Code, which sets out that a person is not guilty of an offence if their action, which would normally constitute a criminal act, satisfies the following 3 criteria:

  1. They believe on reasonable grounds that force is being used against them or another person or that a threat of force is being made against them or another person;
  2. The act that constitutes the offence is committed for the purpose of defending or protecting themselves or the other person from that use or threat of force; and
  3. The act committed is reasonable in the circumstances.

Section 34(2) of the Criminal Code sets out that when deciding if an act constitutes self defence the court shall consider the circumstances of the person, the other parties and the act. The statute lists the following factors as relevant, but acknowledges the inquiry is not limited to these factors:

  1. The nature of the force or threat;
  2. The extent to which the use of force was imminent and whether there were other means available to respond to the potential use of force;
  3. The person’s role in the incident;
  4. Whether any party to the incident used or threatened to use a weapon;
  5. The size, age, gender and physical capabilities of the parties to the incident;
  6. The nature, duration and history of any relationship between the parties to the incident, including any prior use or threat of force and the nature of that force or threat;
  7. (f.1) Any history of interaction or communication between the parties to the incident;
  8. The nature and proportionality of the person’s response to the use or threat of force; and
  9. Whether the act committed was in response to a use or threat of force that the person knew was lawful.

What is a s.110 Weapons Prohibition?

Section 110 of the Criminal Code permits discretionary weapons prohibition orders to be made. A discretionary order means that a judge has the option to make an order if one of the listed offences is involved and an application is made; however, he or she is not required to make an order. Such a discretionary order can be made if a person is convicted or discharged of:

1. An offence that involves violence; or

2. An offence that involves a firearm, crossbow, prohibited weapon, restricted weapon, prohibited device, ammunition, or explosive substance, and the offender was prohibited from possessing such items at the time of the offence.

An order under Section 110 will prohibit the possession of firearms, crossbows, restricted weapons, ammunition, or explosives, prohibited weapons, prohibited devices, and prohibited ammunition for a maximum of up to ten years.

For a Section 110 order to be made, the order must be in the interests of the safety of the accused and other members of the public. Under Section 110(3) if the judge declines a request for an order under Section 110, the judge must give reasons for declining.

Do you have to be Married to be Charged with Domestic Assault?

No, you do not have to be married to be charged with domestic assault. Intimate relationships vary in duration and legal formality, and include current and former dating, common law and married couples.

What is a Failure to Comply with Condition of an Undertaking or Recognizance?

Section 145 of the Criminal Code makes it a crime not to comply with a condition of an undertaking or recognizance. Often a court or police officer will order persons to comply with certain conditions, most commonly through a recognizance of bail or through an undertaking. Once these conditions are ordered, it is a criminal offence to breach one.

The Criminal Code sets out a number of elements required for an individual to be guilty of the offence failure to comply:

  1. A person must be at large on an undertaking or recognizance given to or entered into before a justice or judge
  2. He or she must be must be bound to comply with a condition of that undertaking or recognizance;
  3. He or she must fail, without lawful excuse to comply with the condition

For example, if you are released from custody on a recognizance of bail, you will be subject to conditions. If one of those conditions is to abstain from the consumption of alcohol and a police officer finds you in a bar or tavern, you will be charged with the offence “failure to comply with condition of undertaking or recognizance” under Section 145(3) of the Criminal Code.

What are some of the Penalties Associated with a Failure to Comply?

Section 145(3) of the Criminal Code sets out that a conviction of failure to comply with condition of undertaking or recognizance can result in a penalty of up to two years imprisonment when the Crown proceeds by indictment.

A conviction for failure to comply will result in a criminal record.

What is a s.743.21 Non-Communication Order?

A non-communication order is an order that a judge can make upon sentencing that prohibits the defendant from communicating with a named individual.

Section 743.21 sets out that the sentencing judge may issue an order prohibiting the offender from communicating, directly or indirectly, with any victim, witness or other person identified in the order during the custodial period of the sentence, except in accordance with any conditions specified in the order that the sentencing judge considers necessary.

Such an order is meant to prohibit convicted individuals from communicating in any manner with victims, witnesses or any other person listed in the order while in custody.

What is a s.487.051 DNA Order?

Under s.487.051 of the Criminal Code, a judge may make an order authorizing the taking of bodily substances for DNA tests from a person who has been convicted, discharged, or found guilty as a young offender of any offence included in the list of “primary designated offences”. Among the included offences are: Assault Causing Bodily Harm, Assault with a Weapon, and Aggravated Assault. A court may also make a DNA order for Common Assault, but only if the prosecutor (Crown) is seeking one.

A DNA order varies according to its specific terms. Generally, the order can authorize a peace officer to take bodily substances by: plucking individual hairs from the person, swabbing the person’s lips, tongue and inside cheeks of the mouth, or taking a blood sample.

A court may refuse to grant a DNA order in limited circumstances. The person against whom the order is sought can argue that the impact on their privacy and security of the person would be grossly disproportionate to the aim of the order. Specifically, if the intrusion on the person’s privacy and body would be so disproportionate to society’s interest in the proper administration of justice, to the extent that any concerns cannot be ameliorated by variations of the order, the court is not required to make a DNA order. The factors that a court might consider include the nature of the offense, the nature of the intrusion to the person, and the circumstances of the person who would be subject to the intrusion. However, this is often a very high standard to meet and in most cases, the balance is in the favour of making a DNA order. There is a presumption that taking a DNA sample is justified, and only unusual cases would warrant the court’s refusal.

What types of Assault are often alleged in these types of allegations?

All Assault-related offences can be alleged in cases of Domestic Assault. In situations where a household item is thrown by the accused at their spouse or partner, this may result in a charge of Assault with a Weapon. Any household item that is thrown in a domestic dispute can count as a weapon. For example, our firm has dealt with cases where women were charged with Assault with a Weapon for throwing makeup, milk cartons, handbags, and TV remotes at their spouse. We have likewise dealt with cases where men were charged with Assault with a Weapon for throwing hats, kitchen utensils, keys, and even a scarf at their spouse or partner.

What type of people can find themselves facing allegations of Domestic Assault?

Any person can find himself or herself in a situation where they face allegations of Domestic Assault. Many people who are charged do not have any prior criminal records and face this as their first offence. There are many cases of working professionals, and lawyers themselves, facing charges of Domestic Assault.

What is Bail and a “Bail Hearing”?

Bail is a way in which a person can be released from police detention and be compelled to appear in court at a later date. While there is no single type of “bail” in Canada, what we often think of as bail can take several different forms – a Recognizance, a Promise to Appear, an Undertaking.

After a person is arrested, he or she may be released from police custody or held for a bail hearing (judicial interim release hearing) within 24 hours of the arrest. If the person is released from police custody prior to a bail hearing, he or she must be released on a promise to appear, on a recognizance, an undertaking or an appearance notice. However, in most cases of Domestic Assault, the police do not release the person prior to a bail hearing. This may involve spending a night in jail.

The bail hearing determines whether the accused should be released from detention or be held in detention until the court date. At the hearing, the Crown may either consent to or oppose the release of the accused. In a Domestic Assault case, the Crown may oppose the accused’s release due to the risk to the safety of the complainant and his or her family. In deciding whether or not to oppose the release, the Crown will consider a number of factors, including – the nature of the offence, injuries to the complainant, any outstanding charges, drug or alcohol abuse problems, etc.

Where the Crown does not oppose the accused’s release, or fails to show cause for detention, the accused may be released on an Undertaking or a Recognizance. There are often conditions attached to either of these, which are discussed below.

How is a Bail Hearing in cases of domestic violence different from other Bail Hearings?

In most cases of Domestic Violence, once a person is arrested, he or she will remain in police custody until a bail hearing. According to the Criminal Code, a person who is not released form police custody must be taken to a bail hearing within 24 hours of the arrest, or as soon as practicable. This means that sometimes, the arrested person may spend a night in jail.

A bail (judicial interim release) hearing in a case of alleged Domestic Violence has different considerations than other bail hearings, and the Crown has specific policies guiding its approach to such cases. According to this policy, the safety of the complainant and his or her family is the paramount factor to consider when the Crown is deciding whether to consent to the accused’s release or not. Other factors the Crown will consider include the nature of the offence, the history of the relationship, history of the accused, the extent or presence of injuries, etc.

The Crown is often conservative in its approach to bail hearings in cases of domestic violence. When they do consent to the accused being released from custody, it is often only if the terms of the release require the accused to reside with a surety.

What is a Promise to Appear?

A Promise to Appear is one way in which a person may be released from police custody after arrest, if the police determine there is no compelling reason to hold the person for a bail hearing. A Promise to Appear requires the accused to appear in court at a specific time and place, and must be signed by the accused. Failure to appear at the time and place specified is a criminal offence that carries with it a maximum penalty of two years’ imprisonment.

Promises to Appear in cases of domestic violence are not as common as a Recognizance or Undertaking. This is because the option of a Promise to Appear is only available if a person is not held for a bail hearing after arrest. In most cases of domestic violence, the police hold the accused for a bail hearing (judicial interim release hearing). In a bail hearing, the accused can be released either on a Recognizance or Undertaking.

What is a Recognizance?

A person may be released from police custody on a Recognizance, either before a bail hearing or as a result of the hearing. A Recognizance requires the accused to appear in court on a certain date and time. It also usually includes various conditions attached to it (discussed in more detail below).

A Recognizance involves a payment of money as a way of ensuring the conditions are followed – either upfront as a deposit, or as a pledged amount to be paid in case of a breach. If the accused is released from police custody on a Recognizance prior to a bail hearing, the maximum amount attached to the Recognizance is $500. This is usually without a deposit, where the person is required to pay the amount set out if he or she breaches a condition of the Recognizance. Or, if the person does not reside in Ontario or within 200 kilometers of where he or she is in custody, the Recognizance can have an amount to be paid as a deposit. Here, the person is required to pay the money prior to release, and if the person breaches a condition subsequently, the Crown keeps the deposit.

A person can also be released on a Recognizance at a bail hearing. There are three types of Recognizance with which he or she can be released. These vary depending on whether or not there is a surety and/or a deposit attached.

Recognizance without sureties and without deposit – this type of Recognizance sets conditions and an amount of money that the accused would have to pay if he or she breaches a condition. The judge determines the amount of the recognizance, in considering a number of factors such as the accused’s financial situation, ability to pay, etc. It is the least restrictive type of Recognizance since it does not involve a surety and the accused does not have to pay a deposit to the Crown. However, in cases of Domestic Violence, the Crown is not likely to consent to releasing the accused from custody without a surety.

Recognizance with sureties and without deposit – this type of Recognizance also does not require an upfront deposit payment. Instead, it sets an amount that the accused would have to pay in the event that he or she breaches a condition of the Recognizance. Unlike the previous type of Recognizance, it requires a surety to sign the Recognizance. A surety is a person who makes an agreement with the court to take responsibility for the accused, to make sure they show up to court and do not breach the conditions of the Recognizance. The surety must agree to pay a specified amount if the accused breaches the order.

Recognizance with deposit – this option is only available if the accused does not reside in Ontario or within 200 kilometers of where he or she is in custody. The accused will have to pay a set amount of money or other valuable security upfront as a deposit. Once the case is over, and the accused has not breached his or her Recognizance, that money is returned to the accused. This option may or may not also involve a surety.

What is an Undertaking?

An Undertaking is another way in which a person in police custody or detention can be released. A basic Undertaking simply requires a person to appear in court at a specific time and place. As such, an Undertaking is generally the least restrictive form of release. However, Undertakings often come with conditions. Unlike a Recognizance, it does not require a surety, and it does not involve paying money in case the accused breaches a condition. Nevertheless, there can be a criminal penalty for breaching a condition as with a Recognizance.

If a person is released prior to a bail hearing, an Undertaking can only be required if the arrest was made with a warrant. In such a situation, the person can only be released on a Promise to Appear or a Recognizance. The Undertaking would be made as an addition to one of these two forms of release and would add conditions to the release. See below for the possible conditions attached to an Undertaking.

If a person is released through a bail hearing, they can be released on an Undertaking alone, and an attached Recognizance is not required. It is up to the justice to set the conditions of the Undertaking. At a bail hearing, a basic Undertaking with no conditions is the starting point. It is then up to the Crown to argue for more restrictive measures. In the end the justice decides which, if any conditions to attach to the release of the accused.  See below on possible conditions to an Undertaking at a bail hearing.

What kind of Conditions can be attached to an Undertaking?

As described above, an Undertaking can either be made as an addition to a Recognizance or Promise to Appear if the accused is released prior to a bail hearing. Or it can be its own form of release as the result of a bail hearing.

If an Undertaking is made as part of a release from custody prior to a bail hearing, the following are some possible conditions:

(a) to remain within a territorial jurisdiction specified in the undertaking;

(b) to notify a peace officer or another person mentioned in the undertaking of any change in his or her address, employment or occupation;

(c) to abstain from communicating, directly or indirectly, with any victim, witness or other person identified in the undertaking, or from going to a place specified in the undertaking, except in accordance with the conditions specified in the undertaking;

(d) to deposit the person’s passport with the peace officer or other person mentioned in the undertaking;

(e) to abstain from possessing a firearm and to surrender any firearm in the possession of the person and any authorization, licence or registration certificate or other document enabling that person to acquire or possess a firearm;

(f) to report at the times specified in the undertaking to a peace officer or other person designated in the undertaking;

(g) to abstain from

(i) the consumption of alcohol or other intoxicating substances, or

(ii) the consumption of drugs except in accordance with a medical prescription; and

(h) to comply with any other condition specified in the undertaking that the officer in charge considers necessary to ensure the safety and security of any victim or witness to the offence.

If an Undertaking is made as part of a bail hearing, there are several possible conditions listed in the Criminal Code that could be attached. The justice has significant discretion in ordering conditions, and there are some common conditions used in cases of Domestic Violence. These include:

  • “No contact” terms.
    • Common wording is – 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.
  • Conditions restricting access to complainant’s children.
    • 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
    • Contact with children pursuant to a Family Court order that post-dates the date of this order. OR – Contact with children pursuant to a Family Court order.
  • A “no go” term restricting the accused from going within a specified distance from the complainant’s home and work place.
  • Abstain from drugs and alcohol.
  • Weapons prohibition.

What kind of Conditions can be attached to a Recognizance?

Conditions can be attached to a Recognizance at a bail hearing. The conditions that can be attached are the same as for an Undertaking. The justice has discretion to tailor the conditions to the specific circumstances of the case. Some common conditions in cases of Domestic Violence include:

  • “No contact” terms.
    • Common wording is – 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.
  • Conditions restricting access to complainant’s children.
    • 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
    • Contact with children pursuant to a Family Court order that post-dates the date of this order. OR – Contact with children pursuant to a Family Court order.
  • A “no go” term restricting the accused from going within a specified distance from the complainant’s home and work place.
  • Abstain from drugs and alcohol.
  • Weapons prohibition.

What is Bail Review?

The court’s determination from the initial bail hearing is subject to review upon the request of the accused or prosecutor at any time before the trial. A judge reviewing the bail determination can revisit any aspect of the initial decision, including whether or not the accused should be released from custody (if they weren’t released at the bail hearing), the form of release and any conditions.

Bail reviews are only appropriate in limited circumstances. In order to be successful in a bail review, the accused must show that the justice who made the initial bail ruling made an error of law, or that there has been a material change in the accused’s circumstances that would warrant a change in the bail conditions. Furthermore, since Bail Review is like having an additional hearing, it may take several weeks before a court hears the case. But where the Crown opposes changing the conditions of the initial bail, a Bail Review is the only option available to change bail conditions.

What is a Bail Variation?

A Bail Variation is a way of changing the conditions of an initial bail decision without having a separate hearing challenging the appropriateness of the bail. A Bail Variation is obtained on the consent of the Crown. Where the Crown and the accused both consent, the Criminal Code allows for a great degree of flexibility in varying any part of a bail order. However, as with other aspects of a Domestic Violence case, the Crown has a special policy for Bail Variations.

The Crown will likely not be willing to consent to vary a condition unless the variation is supported by the requisite information, and the variation sought is realistic in the circumstances. For example, if the accused can show that curfew conditions are overly restrictive, the Crown may be willing to agree to change curfews to allow the accused to attend school or work. A common variation sought is on the no-communication condition. The Crown may allow more communication between the accused and the complainant to facilitate counseling. Such variations are limited to situations where the complainant is cooperative and consents to allowing the communication. Variations for communication conditions are often incremental in nature, and are meant to parallel progress made in counseling sessions. For more information on obtaining bail variation.

What is the difference between a Bail Variation and a Bail Review?

Bail Variation is a change in an aspect of the initial bail order where the Crown consents to the change. It does not involve a separate hearing, but simply requires that a judicial officer formalize the variation.

Bail Review, on the other hand, is a judicial challenge to the original bail order. It involves a hearing in a court before a judge. Bail Review is sought where the justice who made the original order made a mistake of law, or where there has been a material change in circumstances since the initial order was made.

Due to these factors, a Bail Variation is often the more efficient and cheaper option. However, Bail Review is the only option available where the Crown does not consent to changing the terms of the initial order.

How can a Bail Variation be obtained?

Bail variation may be sought by approaching the Crown with a proposal for varying a term of the bail, along with concrete proof and information supporting the proposal. There are several situations in which the Crown may grant a Bail Variation. Most commonly, these arise where the complainant is cooperative and supports a Bail Variation. In such cases, the crown may grant variations to allow for the reconciliation process, but they are often contingent on success in a counseling program.

One common situation in which a Bail Variation is possible is through a guilty plea. In such cases, the accused admits guilt and commits to a treatment program. In turn, the Crown will seek to hold off the sentencing until the defendant has completed the program, and may give a more lenient sentence depending on progress in the program. The Crown will often grant full contact between the defendant and the complainant if the complainant provides “written, revocable consent” and files it with the Crown office. The complainant may revoke this consent at any time, verbally, and without notice to the office with which he or she filed the consent.

The other possibility for bail variation is where the complainant is cooperative and wants to seek a resolution to the charges. It must be noted that a complainant cannot simply seek to have the charges ‘dropped’. The complainant does not press charges in the first place; it is the prosecutor (Crown) who pursues the charges and it is their decision on how and whether to pursue them. Furthermore, Crown policy is generally cautious of withdrawing charges in a Domestic Assault case even where the accused and the complainant want it.

Nevertheless, a complainant who is cooperative and who wants to seek a resolution to the charges may agree to have counseling sessions with the accused. When pursuing this resolution, the Crown may grant incremental bail variations to facilitate the reconciliation process. First, there would be a variation to allow for some counseling sessions. If the counseling sessions are successful, and a report from the counselor corroborates this, further variations might be granted that incrementally increase communication. For example, first telephone communication may be allowed, followed by meetings in the presence of a third party, and finally unrestricted communication. If parties successfully complete a counseling program, and counselor reports support this, the Crown may be willing to withdraw charges or grant a peace bond. In many cases the Crown will still not be willing to grant such a resolution. Nevertheless, if the case goes to trial and the accused is found guilty, the successful completion of a counseling program in the meantime would allow a more lenient sentence, such as an absolute or conditional discharge.

In many cases however, the complainant will not be cooperative. Bail variations are still possible but they are more difficult in such cases. The Crown will seek input from the complainant for requests for variation made by the accused. The Crown may consent to change a condition if there are related family law proceedings and the bail order is inconsistent with an agreement or order made by a family law court. Other situations where the Crown may consent is if the bail terms are so onerous as to prevent the accused from attending work or school, such as with a curfew.

416-DEFENCE | 416-333-3623

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