Criminal charges are deemed to be Domestic in nature if they involve either a family member, or a current/former romantic partner. The Department of Justice reports that about half of domestic violence complainants are spouses and ex-spouses, and that the other half are children, siblings, and other extended family members. Statistics Canada suggests that 3 out of 4 reported allegations of intimate partner violence are allegations of common assaults with little no injury to the complainant.

Criminal charges that arise out of a domestic situation are viewed more seriously by the Crown and the Courts than the same criminal charges arising from non-domestic contexts.

The Crown prosecutor is more likely to ask for jail for a crime involving a domestic relationship than for a crime involving a stranger, and the Court is more likely to grant a harsher sentence.

This is because people in domestic relationships are in positions of trust toward each other, and it is considered aggravating when one of the parties abuses that trust.

It is therefore important to determine whether the Crown has in fact designated your charges as involving domestic violence. In Victoria, there is no specific courtroom designated to handle domestic violence cases.

Some of the more common types of offences that occur in a domestic setting include the following:

  • Assault
  • Threats
  • Assault with a Weapon
  • Assault Causing Bodily Harm
  • Aggravated Assault
  • Choking
  • Break and Enter
  • Unlawfully in a Dwelling
  • Unlawful Confinement
  • Sexual Assault
  • Criminal Harassment
  • Extortion
  • Various Breaches of Conditions

Investigation of Domestic Violence Charges in Victoria

An investigation of an allegation of domestic violence in Victoria is typically started by the alleged victim (or a relative/neighbour/witness). They contact the local (Victoria, Saanich, or Oak Bay) Police Service and report it. The police will request a written, audio, or video statement from the complainant or any other witnesses and launch an investigation.

Police will typically interview all witnesses to the offence, review surveillance video, if any, seize any weapons involved, photograph the scene and/or injuries, and obtain medical documents to prove the type and extent of the alleged victim’s injuries.

However, the police may also simply arrest you right away. In fact, all they need to charge you with domestic violence is the complainant’s own testimony. No further physical proof is required.

The Regional Domestic Violence Unit (RDVU) is a multidisciplinary unit comprised of officers from the Victoria Police Department, the Saanich Police Department, and the Royal Canadian Mounted Police. The RDVU also partners with community-based services, as well as the Ministry of Children and Family Development to provide wholistic support to the victims of family violence. Despite the existence of the RDVU, any police officer from any jurisdiction in the greater Victoria area can receive and investigate an allegation of domestic violence.

Once the police have gathered their evidence, they will track you down and arrest you, if you are the alleged perpetrator. The police will either question you at the scene or take you to a Police District Office for questioning and processing. The police will then decide whether or not to press domestic violence charges against you.

Even if a complainant makes an allegation of domestic violence that they later withdraw, it’s still up to the Crown Prosecutor to decide whether to pursue the charges against you. The complainant can be subpoenaed to appear in court in domestic violence cases, even against their wishes.

Penalties for Domestic Violence Charges in Victoria

The punishment for domestic violence can range significantly depending on the specific charge.

Because the punishment for domestic violence depends heavily on the nature of the offence, circumstances of the offence, and the circumstances of the offender, to get a more concrete sense of your criminal liability you should talk to one of our Victoria criminal defence lawyers immediately.

While you do face a high likelihood of receiving a harsh penalty in the event of a conviction, being charged with this offence does not necessarily mean that you will receive a criminal record.

A large number of domestic violence charges are resolved outside of court through pre-trial resolution discussions between defence counsel and the Crown prosecutor. One of the most effective ways we resolve some of the more minor domestic violence charges (like domestic assault) is by negotiating with the Crown for a Peace Bond.

If you are granted a peace bond, you will have to comply with some basic terms for the period of one year, such as no contact with the complainant, no weapons, and attend probation and court as directed. Once you sign the peace bond, the Crown will withdraw the charges against you and you will be able to completely avoid a criminal record. It is important to know that if you agree to a peace bond, you have not been found guilty of the offence.

If a peace bond is not appropriate in your circumstances, we can canvass a range of sentencing options with the Crown that will either leave you with no criminal record, or that will impose minimal restrictions on your liberty after sentencing.

Defending Domestic Violence Charges in Victoria

What are the best defences to domestic violence charges in Victoria?

With such serious penalties, you need a serious defence. Because every case is different, the best defence to a domestic violence charge will depend heavily on the particular circumstances of the offence.

There are other defence strategies that focus on the technical steps taken by the police during the investigation and evidence collection process.

Typically, the best defences for a domestic violence charge are:

  • Factual innocence: this is usually the strongest defence because the facts and the evidence do not support you being there, causing the domestic violence, or other basic elements of the case.
  • Violation of constitutional rights: the Canadian Charter of Rights and Freedoms of 1982 sets out your rights before and after your arrest. If they were not followed to the letter by the police, it will aid your defence.
  • Consent: the burden is on the Crown Prosecutor to prove beyond a reasonable doubt that the person who was allegedly assaulted did not consent to the application of force by the accused person. However, an important limit to this defence is the fact that there is no such thing as consent to bodily harm.
  • Self-defence: reasonable force can be used to defend yourself against an unlawful assault, provided you did not intend to cause death or grievous bodily harm. No reasonable person would accuse you of domestic violence if your actions were taken to protect yourself and were not deemed to be disproportionate or “reckless”.
  • Defending someone else: reasonable force or the threat of force can also be used to defend someone else against an unlawful attack, provided there was no intent to cause death or grievous bodily harm.
  • Defending property: reasonable force or the threat of force can also be used to defend property, though this may be a weaker defence in many situations.
  • Accident: an accidental assault should not lead to a criminal conviction if it was unforeseeable (which you have to prove).

The burden of proof remains high for the prosecution. This means that there are many successful defence strategies that our experienced defence lawyers can take, including those outlined above.

Even if the charges proceed and you are found guilty, a good defence can greatly reduce the severity of the consequences (for instance, assault causing bodily harm may be reduced to a simple assault conviction).

Our lawyers will conduct a thorough examination of the police actions and the evidence against you and call upon medical evidence and witnesses in your defence if required.

How can I help defend domestic violence charges in Victoria?

If you have been charged with domestic violence in Victoria, the following can help your lawyer build a strong defence:

  • Making a statement about what happened;
  • Collecting and maintaining all documents and records about the event;
  • Gathering any photographic evidence that you may have;
  • Logging any relevant texts, emails or phone calls.

As soon as you are released on bail, start to gather any information that may be of use to your lawyer.

What can a lawyer do to help me defend against domestic violence charges in Victoria?

As we start preparing your defence by examining police actions and the evidence against you, there are certain defence strategies that can be used to aid your cause.

Some of these include:

  • Assembling documents, photos, texts, etc. that contradict the allegation and support your version of events;
  • Gathering evidence that questions the complainant’s credibility (e.g., they have lied before, or have a motive to fabricate events);
  • Gathering evidence that questions the complainant’s or witness’s reliability (e.g., they were drunk or unable to see or recall events);
  • Identifying mistakes in the actions of the police, such as Charter breaches;
  • Uncovering administrative/systemic errors, such as with “Jordan delay”, non-disclosure, lost or destroyed evidence, etc.

Domestic violence charges will not automatically get dropped if the complainant changes his or her mind and tells the police they no longer want to charge you criminally. Once a complaint of domestic violence is formally laid, the Crown Prosecutor takes control of the proceedings and the person who made the complaint loses all control over the prosecution of the accused.