While police can exercise their discretion, most often criminal charges will be laid in alleged domestic assault incidents.
Domestic violence is a serious crime that has serious repercussions. Domestic violence encompasses physical or sexual force against the assailant’s partner. However, domestic violence charges also extend to children, other members of the family, pets and property. Pursuant to the section 2 of the Domestic Violence Protection Act:
(2) For the purposes of this Act, domestic violence means the following acts or omissions committed against an applicant, an applicant’s relative or any child:
1. An assault that consists of the intentional application of force that causes the applicant to fear for his or her safety, but does not include any act committed in self-defence.
2. An intentional or reckless act or omission that causes bodily harm or damage to property.
3. An act or omission or threatened act or omission that causes the applicant to fear for his or her safety.
4. Forced physical confinement, without lawful authority.
5. Sexual assault, sexual exploitation or sexual molestation, or the threat of sexual assault, sexual exploitation or sexual molestation.
6. A series of acts which collectively causes the applicant to fear for his or her safety, including following, contacting, communicating with, observing or recording any person.
The most common form of domestic abuse comes in the form of assault. Assault is any non-consensual physical contact between two people. This contact can be direct (hitting someone with your fist) or indirect (throwing something at someone).
Domestic assault charges are taken very seriously in Canada by the police, the Crown Attorney and the courts for a variety of reasons:
1) the prevalence of domestic abuse in our society;
2) the power imbalance it creates in a relationship;
3) the impact it can have on children living in the home; and
4) the risk of the violence increasing if it is not dealt with promptly.
The test for whether there are reasonable grounds to lay a charge is whether an ordinary person, when given a particular set of facts, would have reason to believe that an offence has been committed. In forming reasonable grounds, the police may rely upon a witness statement, any apparent injuries to the victim, any other damage relating to the alleged assault, the information the police from 911 dispatch, or any other relevant information. Ultimately the police must have more than mere suspicion that an assault has occurred.
Once the police are called to the scene of an alleged domestic assault, they will investigate the allegation through interviewing the alleged victim, the accused and another other witnesses. If, after speaking to all involved parties and witnesses the police will either:
1) Release the accused in exchange for that person signing a “Promise to Appear” which means the accused will appear in court at a later date. Along with a promise to appear, the officers may also require the accused to sign an “Undertaking to an Officer” which imposes legally binding conditions on the individual, for example, promising not to return to the family home.
2) Hold the accused for a bail hearing in front of a judge or a justice of peace
Upon the bail hearing, the police will inform the judge or the justice of peace whether they want the person to be held in custody, or whether they want the person to be released on certain conditions. For minor cases of domestic violence, where the person does not have a criminal record or any outstanding charges, the police will tell the judge or justice of peace that the person should be released with certain conditions.
In some cases, the alleged victim may want to withdraw that charges that were laid against his/her partner. However, once a charge has been laid the police or the victim do not have the authority to remove that charge. This is because in domestic assault cases, it is not the victim that who charges the accuses, even if he/she is the one who called the police but rather the government. Therefore, only the Crown Attorney has the discretion to have domestic assault charges withdrawn.