Criminal Law

This section of the resource provides information on:

Why Criminal Law is important to women experiencing violence

Assisting a Woman Charged with a Criminal Offence:

This resource is intended for women who are complainants (victims). If you are assisting a woman who has been charged with a criminal offence, assist her in getting legal counsel immediately. Criminal charges must always be treated extremely seriously.

The police and the criminal justice system are mandated to help protect women experiencing violence. The criminal law and police are an important legal option despite the limited capacity of the law to protect women from men who ignore court orders and break the law. For Aboriginal women, the potential protection offered by the criminal law is reduced by the impacts of colonialism, racism and sexism which generate unequal treatment in the police and criminal justice systems.

Whether or not women choose to call the police, they may find themselves involved in the criminal law process for a number of reasons. Other people – neighbours, friends, other family members – may call the police. Abused women also sometimes find themselves charged with criminal offences, for example when they defend themselves and their children or instigate violence in order to control it.

Because women experiencing violence may need to call the police or may be involved in the criminal justice system as victims (“complainants”) or as accused, it is important that they understand how it works and have realistic expectations of the process.

What is Criminal Law?

Criminal law is federal legislation, so criminal laws are the same everywhere in Canada. However, some of the procedures by which criminal cases move through the court system may vary from place to place.

The key goals of criminal law are to:

  • promote public safety and protect the public
  • prevent crime by deterring people from committing crimes
  • hold people responsible by punishing them for committing crimes
  • rehabilitate offenders and reintegrate them back into their communities.

Treatment and counseling options, particularly in Aboriginal and northern communities, are very limited.

Key People in the Criminal Trial Process

Local police or RCMP

  • Law enforcement officers are generally the first point of contact with the criminal justice system. They respond to calls for assistance or complaints, investigate occurrences, and make the initial decision whether or not to charge an accused person.

Crown Attorney or Prosecutor

  • The Crown Attorney or Prosecutor is the lawyer for the government. Once a person is charged by police, the Crown takes over. The Crown will prosecute the case against the accused person. The Crown’s responsibility is to represent the public interest. The Crown is not the abused woman’s lawyer.

Defence Counsel

  • Defence counsel is the lawyer for the accused person.

Duty Counsel

  • Duty counsel are legal aid lawyers who help out accused persons in Court, usually where the court appearance involves setting a date or a bail hearing. Duty counsel may also help an accused person plead guilty to an offence. Duty counsel do not conduct trials or no assist victims.

Aboriginal Court Support Worker or Liaison

  • In some courthouses in Canada, but certainly not all, there are Aboriginal staff who assist accused persons. The assistance they provide varies from location to location, but generally includes offering to speak to the accused person in his or her own language and explaining the process to accused persons in a culturally appropriate manner so that they have a better understanding of their rights and options for support.

Victim Witness or Services Programs/Crown Witness Coordinator

  • In some jurisdictions there are persons whose job is to support victims through the criminal justice process. The kind of services provided vary from place to place but generally include explaining the process to women, supporting women to provide input into conditions of release or a position on bail, giving women information about what stage the case is at, helping women prepare to testify at trial, offering emotional support and, in the case of victims services, supporting women to apply for financial supports or compensation.

Judges and Justices of the Peace

  • Judges, who are always lawyers, hear criminal trials and decide on sentence if an accused person pleads guilty or is convicted of an offence. In some jurisdictions judges also do the bail hearings.
  • In some jurisdictions Justices of the Peace conduct bail hearings and conduct “set date court”. Justices of the Peace are usually not lawyers and, in some jurisdictions, are specifically appointed to better represent the communities in which they preside.

The Woman (Complainant)

  • The reality is that once charges are laid, the woman does not play much of a role except to provide the evidence (tell the story) so that the Crown can prove the charges against the accused.
  • The woman does NOT:
    • Make the decision about whether charges are laid
    • Make the decision about whether charges are “dropped” or prosecuted
    • Have her own lawyer (or even the right to a lawyer) at the trial.
  • For this reason, in the past, women have been “lost” in the criminal justice process and have often felt abandoned by the system. More recently, practices such as victim witness or witness coordinator programs and specially trained and designated domestic violence prosecution teams, have been put in place to try to make the process less alienating for abused women.

Steps in the criminal justice process

Steps in the criminal justice proces (PDF)

  1. Police are Called
  2. Police Investigate
  3. Police Lay Charges
  4. Victim Services
  5. Accused: Detained or Released and Conditions of Release
  6. Bail
  7. Disclosure
  8. First Appearance Court
  9. Crown Resolution and “Plea Bargains”
  10. Proving the Case: Preliminary Inquiry and Trial
  11. Sentencing
  12. Victim Impact Statement

1. Police are Called

The criminal justice process usually starts with a call to the police.

That call may be made in crisis and require the police to rush to a household to protect a woman.

Or a woman may call the police or go to the police station days, weeks or months – or in some cases years – after a violent incident to report the incident.

If the police are called during the course of a violent incident, they will generally remove the offender, seize any weapons and take the woman to a health facility if necessary or other place of safety. In some jurisdictions the police will contact child welfare authorities if children are present.

2. Police Investigate

The police will interview the woman – who may also be referred to as the “victim” or “complainant” – as well other persons who may have knowledge of the incident. The police will also try to speak to the violent man at the scene.

As part of the investigation police may take photographs, seize property as physical evidence and seek the woman’s consent to the release of her medical records. The woman can take time to decide whether she wants to do that, see Disclosure below.

The police generally do not take statements from persons who are intoxicated.

KGB Videotaped Statements

A KGB caution from the police might sound like this:

This statement will be taken under oath, solemn affirmation or solemn declaration and will be videotaped. (Victim/Witness name), as you are aware we are investigating an allegation of (state nature of offence) that took place on (date). As part of our investigation, we would like to interview you on videotape and under oath, and that is why we have asked you come here today. Your statement is an important part of the police investigation. You should understand that it is a serious criminal offence to make a false statement to the police. If you make a false statement you can be charged with a number of serious criminal offences, including perjury and obstruction of justice. You must understand that your statement might be used against you if you are charged with one of these offences. Lastly, it is important that you understand the statement you provide may also be used at trial for the incident being discussed here today. Are you voluntarily providing this statement today on video?

Do you understand this caution? If yes, can you explain it to me in your own words?

In domestic violence cases, police usually ask complainants to give a videotaped statement at the police station or other location if there is no detachment in the community. This statement is called a “KGB” statement.

In the YWCA Building Service Capacity trainings, we explained that giving the statement may be an unpleasant experience for women, particularly since they are often giving the statement shortly after a traumatic incident. For this reason, it is very helpful for women to know what to expect before they give the statement.

It is important for women to know that the process will begin with the woman being asked to swear to tell the truth and being told that she could be charged with perjury if she lies, or charged with a criminal offence if anything in her statement gives rise to “reasonable and probable grounds” that an offence has been committed by her. This can be very intimidating for women. They may feel that they are the ones under investigation.

The practice of taking KGB statements in domestic violence cases is intended to assist the Crown in prosecuting the accused man, even if the complainant is no longer co-operative or available. It developed in response to the dynamics of abuse and the history of women being reluctant to testify at trial. This is explained further in the section “What if the woman doesn’t want to co-operate?” below.

VAW service staff and community support workers can assist a woman giving a statement to the police by:

  • Accompanying her to the police station
  • Explaining the process in advance so she is prepared
  • Ensuring she knows that she can ask to take a break and step outside for support when she needs it
  • Ensuring translation services are available if she would be more comfortable speaking in an Aboriginal language
  • Helping her to calm down and to prepare to recount the details of a traumatic experience
  • Explaining to her that she should try to be as precise and clear as possible when she gives her statement and should try to remember details as accurately as possible;
  • Validating her experience and explaining to her that a lot of questions from the police does not mean the police don’t believe her.

Generally police do not want support persons in the room when a woman gives her KGB statement because they don’t want her influenced in any way by the support person or the presence of the support person.

3. Police Lay Charges

The police officer investigating the complaint or incident has to decide whether there is enough evidence to lay a criminal charge. The test is whether the officer:

  • Has reasonable and probable grounds to believe that the accused has committed an offence.

The decision whether or not to lay a charge rests solely with the police. It is sometimes made in consultation with a Crown.

The woman does not make the decision to charge or not charge. Sometimes women say that they called the police for protection but they just wanted the man out of the house until he cooled down and they don’t want him charged criminally.

If there is evidence to lay a charge, the police will charge even if the woman asks the police not to.

Mandatory or Pro-Charge Policies

In most provinces and territories, there is a pro-charge or mandatory charging policy in domestic violence cases. This means that where there is evidence to support charges, the police have no discretion and must lay charges.

These zero tolerance policies are aimed at changing behaviour and ending violence against women.

The goals of mandatory charging

The goals of mandatory or “pro-charge” policies are to:

  1. remove responsibility and blame for the decision to lay charges from the victim
  2. increase the number of charges laid in spousal abuse cases
  3. increase the reporting of incidents in spousal abuse cases
  4. promote victim co-operation in the prosecution of cases
  5. reduce re-offending.

Source: Supporting Northern Women – A Northwest Territories Family Violence Shelter Worker Training Program (June 2010)

Whether mandatory charging accomplishes these goals is a topic debated by many. While the mandatory charge policy does strongly condemn violence against women in intimate partner relationships, there are benefits and disadvantages of the policy for abused women.

Benefits of Mandatory Charging in Domestic Violence Cases

Pro-charge policies:

  • Remove responsibility from the victim/woman for laying charges – it’s not her “fault” he was charged, it’s the law
  • Send a message to the offender that it is unacceptable to abuse their partner : domestic violence is always a criminal offence
  • Provide police with the ability to remove the offender from the home to protect the victim from further harm
  • Prevent or attempt to prevent abusers from pressuring women to “drop” the charges, as women no longer have no power to do so.

Disadvantages of Mandatory Charging for Women

“They might not want to piss off all of his family in the community. The community is just 200-300 people, and if you piss off half of them it can cause you all kinds of grief. There’s probably more reasons not to call than there are to call.”

Participant,
Building Service Capacity

Some of the ways in which mandatory charging may disadvantage women include:

  • In some jurisdictions, women may be charged (“dual charging”) if they have fought back, if it is unclear to the officers on the scene who the “primary aggressor” was, or if the police fail to adequately investigate the incident
  • Women sometimes feel that they need to “prove” to the abusive partner that they do no want the charges laid, and may become resistant or volatile with the police
  • Once a call is made to the police, the woman loses control of the process, regardless of her wishes and needs, including her assessment of what is best for her safety
  • Women may be less likely to report violence to the police for protection if they know their partner will be charged/jailed because of:
    • Fear or risk of retaliation by the partner
    • Escalation of violence as a result of police involvement
    • Fear of involvement of child welfare authorities if the police are called
    • Loss of income or financial support if the man is charged or detained
    • Particularly in small communities, concern by women that they will not have the support of their community or family and will be ostracized, isolated or punished if the man is charged
  • Releasing a man on condition to stay away from the victim can make life very difficult for women in small isolated communities where housing is inadequate and everyone lives in close proximity.

Source: National Clearinghouse on Family Violence. Aboriginal Women and Family Violence. Ottawa: Public Health Agency of Canada, 2008.

Common Domestic Violence Offences

  • assault
  • assault causing bodily harm
  • sexual assault
  • sexual assault causing bodily harm
  • assault/sexual assault with a weapon
  • criminal harassment (sometimes called “stalking”)
  • uttering threats
  • mischief
  • intimidation
  • forcible confinement
  • attempted murder
  • murder
  • Violation of a protective court order under domestic violence or family law, violation of a peace bond or a condition of release.

For further explanation of these offences see Springtide Resource fact sheet.

4. Victim Services

In many jurisdictions, police will attempt to connect women with Victim Services if they have responded to a domestic violence call and have laid a charge against the abusive man. The institutional location and scope of assistance of these services varies significantly between provinces and territories. The range of support offered may include:

  • Safety planning
  • Crisis Intervention
  • Emotional Support
  • Case specific information (court dates, copies of bail conditions, undertakings)
  • Court orientation and accompaniment
  • Needs Assessment
  • Referrals to other community agencies
  • Assistance in applications for restitution, financial benefits and other financial compensation
  • Information on the criminal justice process and what to expect
  • Arranging for language interpreters or accommodation of special needs
  • Assisting women in contacting the Crown attorney or police officer in charge of the case
  • Helping to complete a Victim Impact Statement.

Alberta

In Alberta, there are police-based Victim Services Units across the province that work in conjunction with local police forces or RCMP to provide support, information and referrals to persons who are victims of crime. There are also a small number of community-based victim service providers as well as ones which assist people with court processes. Click here for Victims Services Offices in Alberta.

Manitoba

In Manitoba, most victim services are provided through the Department of Justice. They help people access their rights, understand their responsibilities, explain what financial supports or compensation are available, and connect to other services or agencies. There are some services which are police-based.

Northwest Territories

In the Northwest Territories, local community organizations receive funding from the Department of Justice to provide direct victim services such as safety planning and completing Victim Impact Statements, as well as information, support, assistance and referrals. Click here for Victim Services Offices in NWT.

Nunavut

In Nunavut, community-based organizations are funded by the territorial government to provide direct services to victims including information, support, practical assistance, accompaniment and referrals. As well, there is federal funding for Crown Witness Coordinators who travel the territory to provide victims or witnesses with court orientation, and generally support victims or witnesses and maintain contact with them throughout the court process, in collaboration with community-based organizations.

Ontario

In Ontario there are two different forms of victim services. There are victim services offered through local non-governmental organizations which provide safety planning, crisis intervention, referrals and emotional and other supports. There is also the Victim Witness Assistance Program (“VWAP”) which is part of the court system. VWAP staff in Ontario provide women information about the progress of the case, help connect women to the Crown when necessary and help women understand what to expect when they testify.

Saskatchewan

Saskatchewan’s Victim Services Branch supports the provision of victims services, the majority of which are provided through local police services. There are also Aboriginal Resource Officers who help ensure that Aboriginal community members receive culturally sensitive information and support during their involvement in the criminal justice process.

5. Accused: Detained or Released and Conditions of Release

Once the police decide to lay charges the offender may be arrested or released on a “summons to appear” in court at a later date or on a “promise to appear” in court on a specific date. If an accused is released on a “promise to appear”, he will also usually be required to sign an “undertaking” to the Officer in Charge with a list of conditions.

Common conditions of release in domestic violence cases include:

  1. non-communication with the complainant/victim
  2. non-communication with a family child, if child is the victim
  3. provision for access to children (often involving the assistance of a third party to minimize contact with woman)
  4. non-attendance at the complainant’s place of residence, education or employment
  5. no alcohol or drugs (if an issue);
  6. no weapons
  7. possible prohibition on using cell phones.

In many jurisdictions, the police or victim services will try to speak to the woman to get her input on whether the man can or should be released on an undertaking and, if the police are considering releasing him, on the conditions of release.

For example in an urban setting, unless the woman provides input, the police may not know that a condition like “he must reside at 123 Apple street” is unsafe because it is too close to a child’s school or where the woman resides, unless the woman provides that input.

In smaller more remote communities, the woman may wish to advise police that in her view the man should be detained because if he is released he will live in close quarters with her or near her (regardless of any conditions) and there is a high risk of further violence.

Risk Assessment Tools

In deciding whether or not to release an accused on an undertaking with conditions or in deciding what position to take in the bail hearing, police officers and Crown Attorneys may refer to a standardized domestic violence risk assessment tool. These vary slightly from jurisdiction to jurisdiction.

In Alberta, the police use the Family Violence Investigation Report (“FVIR”).

In other places, many organizations, like women’s shelters and criminal justice system participants, will use the Danger Assessment tool.

An inventory of threat assessment tools used across Canada prepared by the federal government can be found here.

6. Bail

In many jurisdictions in Canada where domestic violence charges are involved, intimate partners are usually held in custody (“detained”) until a bail hearing is held rather than being released on an undertaking.

A person who is held in custody pending a bail hearing is supposed to be brought before a Justice of the Peace within 24 hours. The reality in many places, however, is that it can take days or sometimes longer (eg. if the accused is having trouble retaining counsel) before a bail hearing is held. The accused may be brought before a Judge or Justice of the Peace but the matter might be repeatedly “remanded”, that is put over to another date.

At the bail hearing, the Judge or Justice of the Peace will decide whether to:

  • Keep the accused person in custody until his trial OR
  • Release the accused, with or without conditions and a surety.

A “surety” is someone who agrees to essentially act as the accused’s “jailor” in the community. In other words, watch over the accused and make sure he abides by any conditions set by the Court. A surety may also be asked to post money with the Court which the surety will lose if the accused breaches his bail conditions.

A complainant generally cannot be a surety for the accused.

In some jurisdictions victim services or the Crown will try to speak to the complainant about her views on whether the accused should be denied bail, including her safety concerns and any specific conditions which might protect her if the accused is released. Ultimately, however, it is the Crown’s decision whether or not to oppose the accused being released on bail.

If the Crown opposes the release of the man on bail, or if the Crown wants the Court to order conditions on any release, a bail hearing will be held.

A judge or justice of the peace will generally release an accused, usually on conditions, unless:

  • The accused poses a flight risk, that is, he won’t show up at his next court appearance OR
  • The accused is likely to commit further offences if he is released and detention is necessary to protect the safety of the woman or other members of the public

The judge will also consider whether keeping the accused in jail is necessary to maintain public confidence in the administration of justice.

If the judge or justice of the peace releases the accused on bail, the conditions are similar to the kinds of conditions listed above in 5. Accused: Detained or Released and Condition of Release, particularly no communication or contact with the complainant.

Other typical conditions might be that the man must:

  • Live with his surety (the person who posts bail)
  • Be home every night by 6pm
  • Remain in the home until 8am the next morning
  • Consume alcohol only in the home of the surety
  • Never be outside of the home after having consumed alcohol.

If the accused is denied bail, he will stay in jail until his trial. He may also be ordered not to communicate with the complainant directly or indirectly while he is in custody. He may also be ordered not to communicate with other witnesses while in custody. This can be especially important in small communities where other witnesses, like family members, could feel threatened or intimidated if contacted by the accused.

Gladue: Bail and Sentencing of Aboriginal Accused

If the accused identifies as Aboriginal, the Court is required to consider all non-custodial alternatives to jail. This requirement, discussed in a Supreme Court of Canada case called R. v. Gladue, recognizes that Aboriginal peoples are over-represented in Canada’s prison system because of colonialism, dispossession, racism and intergenerational trauma from residential schools and child welfare apprehensions. As the judge in the Gladue case said:

The background factors which figure prominently in the causation of crime by aboriginal offenders are by now well known. Years of dislocation and economic development have translated, for many aboriginal peoples, into low incomes, high unemployment, lack of opportunities and options, lack or irrelevance of education, substance abuse, loneliness, and community fragmentation.

The Criminal Code of Canada therefore requires that non-custodial alternatives be considered for Aboriginal accused and offenders.

Among the many difficulties in effectively implementing the principles of Gladue is the lack of community-based healing and other services and programs, particularly in the North and in Aboriginal communities.

For more information on the Gladue case and how the Gladue factors should be applied by all judges when deciding bail or sentencing hearings, please see:

Alberta:

Understanding the Gladue Decision: Sentencing for Aboriginal Clients

BearPaw Legal Education and Resource Centre (Native Counseling Services of Alberta)

Manitoba:

Gladue Handbook: A Resource for Justice System Participants in Manitoba
[good checklist at pp 34-40]
University of Manitoba, Faculty of Law

Ontario:

Are you Aboriginal? Do you have a bail hearing? Or are you going to be sentenced for a crime? (Booklet)
Community Legal Education Ontario (CLEO)

Gladue Primer
Canadian Bar Association

7. Disclosure

The Crown must provide the accused with all of the evidence that is in the Crown’s possession that is relevant to the case.

This will include:

  • Police notes and investigation reports
  • Statements of all witnesses
  • Any videotaped (KGB) statement given by the woman, as well as any other witnesses
  • Photographs of the scene
  • Medical evidence, for example, if the woman has consented to the release of her records.

Women should know that if police ask for personal records, like diaries or journals, and they are given to the police, these will be given to the accused. Women do not have to hand over personal records to the police. Private records are protected. If asked for documents like diaries or journals by police, women should get legal advice before handing them over.

8. First Appearance Court

If the man is released on bail, he will be required to attend court for a “first appearance” within 4-6 weeks.

The Court will want to know if the accused is going to plead guilty or not guilty. The accused may plead guilty if he’s ready to take responsibility for his actions.

Most of the time, however, the accused will “adjourn” or “remand” the matter, that is, put it over to another date in the future. For example, if he’s trying to get a lawyer or if he or his lawyer want to further review the disclosure evidence before making a decision about the case.

The criminal justice process often slows down considerably after the first appearance. It can take weeks, months and sometimes even years for a case to proceed from first appearance to trial.

Cases generally proceed more quickly if the accused has been denied bail, since his liberty has been taken away pending trial.

VAW service staff can help women have reasonable expectations about how long the criminal process might take, and can support women by helping them get information about the next court date and to ask questions about the progress of the case.

9. Crown Resolution and “Plea Bargains”

Before a trial date is set, the Crown and the lawyer for the accused will meet.

They will talk about the strengths and weaknesses of the case and the possibility of an agreement on charges and sentence if the accused agrees to plead guilty. This agreement is referred to as a “plea bargain” or a “plea resolution”. Even if the Crown and defence agree on guilty plea and sentence, the judge must consider their “joint submission” and decide on sentence. The judge can impose a harsher or lighter sentence than proposed.

In domestic violence cases, the Crown should try to get input from the complainant before any final agreement with the accused. However, it is ultimately the Crown’s decision how to proceed.

Plea bargains often make women feel alienated from the process or that the accused got off lightly because he plead to a lesser offence. One reason why plea bargains can sometimes be good for women, is that they are spared the difficult experience of testifying in court and being cross-examined by the accused’s lawyer. It also means that there is no uncertainty in terms of an acquittal at trial. The accused will have a criminal record for the offence he plead guilty to.

In domestic violence cases, sentences will often involve a term of probation with conditions to protect the woman (see sentencing below).

If there is no plea agreement, the case will go to preliminary hearing or trial.

10. Proving the Case: Preliminary Hearing and Trial

Preliminary Hearing

In some cases – usually those involving serious charges – there will be a preliminary hearing before the trial.

The purpose of a preliminary hearing is to see if the Crown has enough evidence for the case to go to trial. It also gives the accused and the defence lawyer a chance to hear the details of the case against the accused.

In cases where there is a preliminary hearing, the woman will have to testify twice and will be cross-examined twice.

Trial: Standard of Proof

At trial, the Crown must prove that the accused is guilty beyond a reasonable doubt. This is a very high standard. Because of this high standard, sometimes accused are acquitted even though the judge believed the woman’s evidence.

VAW service staff can support women by explaining the high standard of proof and that even if the accused is acquitted it doesn’t mean that woman was not believed.

Testifying at Trial

The woman will usually be required to testify at trial. “Testify” means telling her story under oath. This can be an intimidating and difficult process. It is important that the woman is prepared. The Crown is responsible for making the case against the accused and, if the woman is testifying, should meet with her to prepare her prior to trial.

VAW service staff can support women to prepare for trial by:

  • Taking them to court before they testify, so that it is more familiar
  • Helping arrange for translation if they would be more comfortable in an Aboriginal language
  • Attending court with them on the day of trial to provide emotional support
  • Reminding women that they:
    • should try to get a good night’s sleep before testifying
    • should eat a good breakfast and take snacks to court
    • may be asked to sit outside in the hall for part of the day (because as a witness they will be excluded from the courtroom)
    • should listen to the questions and make sure they understand before they answer
    • can say “I don’t know” or “ I don’t recall” if they don’t know the answer to a question
    • can ask for clarification if they need it
    • can ask for a break if they need it

The Crown should also advise women on the last four points.

Websites with some helpful checklists on preparing to testify include:

An accused is not required to testify at the preliminary inquiry or trial.

Trial: Cross-Examination

It is the role of defence counsel to cross-examine the Crown’s witnesses, including the woman who is the victim, if she testifies.

In domestic violence and sexual assault cases, defence counsel will sometimes attempt to:

  • destabilize the woman
  • make her feel like she’s confused or stupid
  • make her lose her confidence and to doubt herself or her memories
  • ask her detailed questions to catch her on inconsistencies
  • provoke her so that she gets angry
  • suggest to her that she has a motive to lie or exaggerate her story.

The way for women to prepare for this experience is simply to:

  • know what to expect
  • take a deep breath
  • try to remain as calm and clear-headed as possible throughout
  • tell the story of what happened as best they can.

In some jurisdictions, victim services can help, but only with general information. Victim services cannot hear the woman’s evidence (her story).

11. Sentencing

If the accused is found “guilty” the judge must choose from a range of sentences set by law and decide on the appropriate sentence. The judge will consider:

  • circumstances of the crime
  • offender’s criminal record
  • offender’s personal history
  • impact of the crime on the victim (and any “Victim Impact Statement”)
  • amount of responsibility that is taken by the offender
  • any “Pre-Sentence Report”
  • For Aboriginal offenders, “Gladue” considerations under s.718.2(e) of the Criminal Code (the Gladue factors). The judge has a duty to consider all options other than jail. See Gladue.

How Does the Judge Decide the Appropriate Sentence?

The Crown prosecutor and the defence counsel have the chance to tell the judge about the offender. They will make suggestions to the judge about the appropriate punishment. The Criminal Code directs the judge what to consider in deciding on a sentence.

The judge may ask a probation officer to prepare a pre-sentence report to help make a decision. This report will talk about the offender’s strengths and weaknesses and may include suggestions for his rehabilitation.

In some jurisdictions, Aboriginal court support workers prepare “Gladue Reports” which focus on the individual and systemic factors which have affected the offender, such as:

  • Did he or a member of his family go to residential school?
  • Was he adopted or in the child welfare system?
  • Did he grow up in a home where there was abuse or addictions?
  • Does he have addictions, mental health issues or fetal alcohol spectrum disorder?
  • Did he grow up on a reserve or in an Aboriginal community?
  • Are there details of that community’s history that the judge should be made aware of?
  • What programs or sentencing options other than jail might be available in that community

In other jurisdictions, these factors are discussed – although often not as comprehensively – in the pre-sentence report.

The victim may tell the judge how the crime has affected her or him by preparing a Victim Impact Statement. The judge must consider the Victim Impact Statement before deciding on a sentence.

For many offences there is a “minimum sentence” which the judge must apply.

What are the types of sentences?

There are many sentences and combinations of sentences the judge can choose from such as:

  • An absolute discharge. This means an offender will have a record of a finding of guilt but not be punished.
  • A conditional discharge, which means an offender will have to fulfil conditions for a period of time instead of a prison term or other punishment.
  • Pay money or restitution to a victim for any injuries or to replace any property that was taken or damaged.
  • A release on probation for a period of time. The offender is to be of good behaviour and tell the probation officer or youth worker of any changes of address, school or work. There may be special conditions to follow. Contact or no contact with the complainant may be a term in a probation order.
  • A conditional sentence where the accused serves less than two years under supervision in the community along with certain conditions instead of jail.
  • Imprisonment or jail. This is the most serious sentence because it takes away a person’s freedom.
    • An offender who is sentenced to jail for less than two years will stay in a provincial correctional institution and may be on probation after that time. The offender will have to follow certain rules and report to a probation officer regularly.
    • An offender sentenced to two years or more serves the time in a federal penitentiary. After serving at least one third of the sentence, an offender can ask for parole. Parole allows the offender out of jail, with strict rules and supervision before the sentence is completed. An offender on parole who does not follow the rules may be returned to jail.
  • An intermittent sentence where the offender will go to jail for blocks of time such as every weekend.
  • A person who commits a very violent crime against another person may be declared a dangerous offender and sentenced to stay in a federal prison for as long the person is considered dangerous. In some cases, this will be indefinitely. A special request and hearing must be held to declare an offender a dangerous offender.

As part of some probation orders, there may be a term of no contact with the complainant. However, the Court may word the condition as follows, “contact with the complainant only to be with her/his written revocable consent filed with the probation officer.”

“Revocable” means that the woman can at any time withdraw her consent to the offender contacting her.

If this is the case, the complainant may choose to have contact but must first file written revocable consent with the probation officer. However, if the clause is worded “no contact with the complainant”, she can’t file her consent – the Court has ordered no contact with no exceptions.

12. Victim Impact Statement

The Victim Impact Statement is an opportunity for the woman to tell the Court how the offence has affected her emotionally, psychologically, financially or in any other way.

It can be completed any time prior to sentencing. In some jurisdictions the statement can be filed with the Court in a sealed envelope before the accused is convicted. In other jurisdictions the statement shouldn’t be given to the Crown or the court until after the accused has plead guilty or been convicted at trial since otherwise the Victim Impact Statement will be given to the accused as part of the disclosure.

The woman may be cross-examined at the sentencing hearing on her Victim Impact Statement, although this is rare. The woman may give an oral statement at the sentencing if she chooses. Victim services or VAW service staff can help women complete the Victim Impact Statement form. Click here for a sample of what this form looks.

You can find more information on Victim Impact Statements here.

13. What if the woman doesn’t want to co-operate?

Sometimes women decide that they don’t want to be involved in the case against their abusive partner. There are many reasons they may make this decision including:

  • Pressure from family and community
  • Fear of escalation of violence
  • Lack of trust or faith in the Canadian criminal justice system
  • Love for the man
  • Not wanting the breadwinner jailed
  • Previous negative experiences with the police
  • Intimidation or fear of the legal process
  • Slowness of the legal process

If you know that a woman is ambivalent or doesn’t want to co-operate you can:

  • Encourage her to tell the Crown or Victim Services/Victim Coordinator about her doubts and concerns. The sooner the Crown knows, the better. This information may give the Crown an opportunity to talk to the woman and calm her fears or provide her with more information. Or it may affect the Crown’s decision to accept a plea bargain.
  • Explain to the woman that she can be “compelled” to testify and can be arrested if she fails to appear. Women are rarely arrested for refusing to testify but it has happened.
  • Remind the woman that once charges are laid, she no longer controls the criminal trial process. The Crown may proceed with the prosecution even if the woman wants the charges withdrawn.

If a woman appears at the trial but refuses to co-operate, the Crown can:

  • Have the woman declared an adverse witness and cross-examine her; and
  • Rely on the woman’s videotaped KGB statement

The Crown will argue that the woman’s evidence at the time the KGB statement was given is a more accurate and reliable reflection of what happened than the woman’s evidence in Court.

Key information to convey to women about the criminal trial process

  • Try to get a lawyer as soon as possible if they have been charged with a criminal offence;
  • They will have no control over the criminal trial process.
  • Pro-charge or mandatory charging policies mean that police must lay charges if there are reasonable grounds to believe a domestic violence offence has occurred.
  • The Crown decides if the prosecution will proceed.
  • Women have an opportunity to provide input, particularly with respect to:
    • Whether the accused should be released on an undertaking or bail
    • Appropriate conditions of release to protect her safety
    • Sentencing
    • Probation conditions
  • If the woman is having second thoughts about participating in the process, she should contact the Crown or victim services to talk about it
  • Women need to have realistic expectations about the criminal justice process:
    • It can be very slow and alienating
    • The men are often released back into the community either on bail or after serving their sentences

Current as of January 2014.

Useful resources

General

Victims of Violence

Resources with a VAW focus

Resources with a focus on aboriginal peoples

Resources on victims services

Ontario

Northwest Territories

NWT Department of Justice

Saskatchewan

Relevant legislation

National

Alberta

Manitoba

Ontario

Northwest Territories

Nunavut

Saskatchewan