Criminal Charges related to Intimate Partner Violence
As a criminal lawyer based in Windsor, Ontario, Christina Loebach helps persons charged with Canadian criminal offences. This blog post considers the offences that may fall under the category of “intimate partner violence” in Canada.
Intimate Partner Violence and the Criminal Code
The Criminal Code defines “intimate partner” as including a current or former spouse, common-law partner and dating partner.
There is no specific offence of intimate partner violence (also called “domestic violence”) in the Criminal Code. Many different offences within the Criminal Code may be used to prosecute instances of intimate partner violence, including:
Uttering threats (s. 264.1);
Assault (s. 265);
Assault with a weapon or causing bodily harm (s. 267);
Aggravated assault (s. 268);
Sexual assault (s. 271);
Sexual assault with a weapon, threats to a third party or causing bodily harm (s. 272);
Aggravated sexual assault (s. 273);
Kidnapping and forcible confinement (s. 279);
Trafficking in persons (s. 279.01);
Murder (s. 229);
Attempt to commit murder (s. 239);
Criminal harassment (s. 265);
Making indecent and harassing phone calls (s. 372);
Trespassing at night (s. 177);
Mischief (s. 430).
Mandatory Charging in Ontario
In the province of Ontario, police are required to lay charges in cases of domestic assault if they believe there is evidence that a person has assaulted their current or former intimate partner. This is referred to as “Mandatory Charging Policy”, and applies even if the person who was allegedly assaulted does not want them to charge their partner. If there is evidence that both partners were assaulted, but it is not clear who the main aggressor was, both partners may be charged (“dual charging”).
Punishment for Domestic Violence Offences
The sentence imposed depends on what the accused is charged with and found guilty of, and also whether the Crown proceeds summarily or by way of indictment. The sentence is more severe if the Crown proceeds with the charge as an indictable offence.
In cases involving intimate partner violence, the predominant sentencing objectives are denunciation and deterrence. R. v. Rahanam, 2008 ONCA 1 (CanLII). Section 718.2(a)(ii) of the Criminal Code provides that, “evidence that the offender, in committing the offence, abused the offender’s intimate partner or a member of the victim or the offender’s family… shall be deemed to be an aggravating factor.” This means that when the offender is sentenced, the penalty may be more severe because special consideration is given to the harm that results from intimate partner violence. Judges are more likely to add conditions to the sentence, such as no-contact orders or mandatory counselling.
Early Intervention Program (EIP)
The Early Intervention Program (EIP) may be available to first time offenders if they have no prior criminal record, no weapon was used, and no significant harm or injuries occurred. The Crown Attorney has sole discretion as to whether EIP will be offered, and it is very fact specific.
If EIP is offered, the case is adjourned while the offender registers for the 16-week Partner Assault Response (PAR) program. The PAR program is provided by community agencies and includes group education and counselling sessions. If the offender successfully completes the PAR program, they may be given a discharge or possibly a peace bond, depending on the agreement reached with the prosecutor.
Immigration Consequences of an Intimate Partner Violence Conviction
Under section 36(3) of the IRPA, all hybrid offences are treated as indictable offences, even if the Crown elects to prosecute the offence summarily. Therefore, a conviction for many intimate partner violence offences, including assault, may result in collateral immigration consequences.
For a recap on the concept of inadmissibility based on criminality, check out this previous blog post. For a summary of the concept of inadmissibility based on serious criminality, read this blog post. As a reminder, temporary residents may be inadmissible based on criminality or serious criminality, whereas permanent residents may be inadmissible based on serious criminality only.
Having a criminal record may have a serious and lasting impact on many aspects of your life, including but not limited to employment, travel, immigration, and renting a home. If you are dealing with criminal charges related to intimate partner violence, schedule a consultation with Christina.