Domestic Violence

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Domestic Violence 2020-09-29T19:29:14+00:00

Your Guide to Domestic Violence Charges by Domestic Violence Lawyers in Kelowna

What is Domestic Violence?

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 Kelowna, 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:

Investigation of Domestic Violence Charges in Kelowna

An investigation of an allegation of domestic violence in Kelowna is typically started by the alleged victim (or a relative/neighbour/witness). They contact the local Kelowna Royal Canadian Mounted Police (RCMP) 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 Kelowna RCMP’s Domestic Violence Unit (DVU) is a multidisciplinary unit comprised of police officers and social workers. The Kelowna RCMP DVU 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 DVU, any RCMP officer 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 Detachment 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.

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Bail Process and Conditions for Domestic Violence Charges in Kelowna

How do I get myself or a loved one out on bail for domestic violence charges in Kelowna?

Where charges arise out of a domestic situation, you will likely be kept in custody and require a formal bail hearing to secure your release.

Your bail hearing must be held within 24 hours. Note that the 24-hour period starts from the moment of arrest or detention rather than the time when you are brought to the detachment or courthouse.

On a weekday, in order to conduct a bail hearing, you will be transferred from the detachment to the Kelowna Courthouse. The address of the courthouse is as follows:

Kelowna Courthouse
1355 Water Street
Kelowna BC V1Y 9R3
(250) 470-6900

If you are arrested after approximately 3PM you will be held at the detachment until the following morning, at which time you will be transported to the courthouse for your bail hearing, which will be conducted in front of a provincial court judge.

If you are arrested on Friday after approximately 3PM, or if you are arrested on a weekend, your bail hearing will be conducted at the detachment via telephone with a justice of the peace from the Justice Centre.

Loved ones are not able to contact you while you are detained. The police will not release any information to friends or family due to privacy laws. Your lawyer is the only person allowed to contact you. Once the police have verified your lawyer’s details, they will pass on details about your whereabouts, if requested.

Because of these difficulties, while you are held in custody, it is best to appoint a competent defence lawyer as soon as possible to manage the legal processes and communicate with loved ones. After an arrest, the police must provide you with the opportunity to call a lawyer in private and, if that happens, stop questioning you.

Once you retain one of our experienced criminal defence lawyers, we will begin working to secure your release on bail. We will immediately do the following:

  1. Call in to the detachment where you are being held, or the Kelowna Courthouse if you have been transported, and speak to you;
  2. Contact the police officer or prosecutor assigned to the bail hearing to start negotiating your release;
  3. Where possible, order and secure a copy of the police information package that details the allegations against you in advance of the bail hearing. This allows the lawyer to make meaningful representations to the court about why you should be released on bail; and
  4. Conduct either an in-person or teleconference bail hearing to secure your release.

When you attend your bail hearing, the Judge or Justice of the Peace will consider the following factors:

  • Is detention necessary to secure your attendance in court?
  • Is detention necessary to protect the public from a substantial risk of re-offence?
  • Is detention necessary in all the circumstances to maintain confidence in the administration of justice?

The Criminal Code also directs the Judge or Justice of the Peace to considered whether the alleged victim of the offence is an intimate partner or family member. Where this is the case, it can be more difficult to secure your release on bail.

Due to the serious nature of the charges, you can expect to be placed on very strict conditions. Rest assured, we will work to not only secure your release but also ensure the least restrictive set of bail conditions (including the minimum cash deposit) possible.

In order for your lawyer to secure less stringent conditions, the judge will need to be satisfied that you will attend court as required and that you pose no significant risk of harm to the public. This may be difficult in a domestic violence case, but not impossible.

Our lawyers are often successful at persuading the Crown Prosecutor in charge to let our clients out. Moreover, we will work to secure your release on conditions that are no more than necessary. If we can’t convince the prosecutor, we can conduct a formal bail hearing and work to convince the Court. Even if you are ultimately detained, we can appeal that decision on very short notice through a Bail Review. Such reviews are conducted at the Supreme Court of British Columbia.

Where can I pay for bail for domestic violence charges in Kelowna?

If you or a loved one is charged with domestic violence charges in Kelowna and granted bail, you can pay bail at court registry (courthouse) in British Columbia. Even if you live in Vancouver, you can pay bail there for someone detained in Kelowna.

The Kelowna court registry is open from 8:30-4:30 Monday to Friday. The contact details of the registry office at the Kelowna Courts Centre are as follows:

Kelowna Courthouse
1355 Water Street
Kelowna BC V1Y 9R3
(250) 470-6900

To pay your own bail, you can make a payment after you have your hearing, assuming you have sufficient funds with you to do so.

How do I change my release conditions for domestic violence charges in Kelowna?

Release on bail with domestic violence charges will almost always mean either a surety, cash, or a no-cash promise to pay. A promise to pay means that you do not have to post bail upfront to secure your release, but if you breach your conditions or fail to attend you court, you may be required to pay the proscribed amount to the court. Beyond that, you can expect tight restrictions, including refraining from:

  • Interaction with the alleged victim;
  • Attending the alleged victim’s home or place of work;
  • Leaving your house (i.e. house arrest);
  • Staying out beyond a certain time (i.e. curfew);
  • Breaking any laws;
  • Using drugs or alcohol;
  • Possessing weapons;
  • Possessing firearms;
  • Visiting certain places;
  • Travelling.

The judge can also impose some additional conditions such as:

  • Residing where approved;
  • Reporting to probation;
  • Attending counselling;
  • Maintaining or seeking employment.

A variety of factors will be considered when determining your precise restrictions, including:

  • Your criminal history;
  • Your physical and mental condition;
  • The nature of the alleged assault;
  • The likelihood that you will flee;
  • Your history of drug/alcohol usage;
  • Whether you have stable employment;
  • Whether you have stable living arrangements;;
  • Whether you have ties to the community.

The most onerous conditions that are almost always imposed in domestic violence cases are a restriction on

  1. Your place of residence, or
  2. Your ability to contact the alleged victim, and other family members (like your children).

If you share a home with the alleged victim, you will most likely not be allowed to go back home until the matter is addressed again in court.  Even if you are paying the rent, are on the lease, or outright own the home, you will not be able to return home.

At least for the short term, make alternate arrangements as soon as possible until this can be changed.

One short term measure that the Crown prosecutor may agree to, even without counsel input, is to allow an exception of a one-time attendance at the home to retrieve personal belongings with a police escort.  There are several further measures that can be taken to get you access to your residence, such as hiring a family lawyer to remove the other party from the residence, or making a court application for access to the residence should the appropriate circumstances warrant such a remedy.

If the alleged victim of domestic violence is a spouse or intimate partner, it is quite common for the no contact condition to include not only the spouse but also the children of the relationship.  The ‘no contact’ condition means you cannot send the named person(s) any messages either personally or through other people or mediums.  This often places significant strains on all parties involved, both emotional and financial.  Moreover, when children are implicated, child welfare services also become involved, making changing conditions to allow contact even harder.

Sometimes the alleged victims of domestic violence take it upon themselves to contact the Crown Prosecutor, or the domestic violence victim assistance unit to make known that they want to contact.  However, even if the alleged victim wants contact, the Ministry of Child and Family Services and the Crown Prosecutor may refuse to change those conditions.

There are typically no quick or certain measures that will guarantee contact.  However, one thing you can do is to engage in counselling as soon as possible.  There are numerous domestic violence programs available. If alcohol is involved, do some alcohol counselling. Participating in such programs is not an admission of guilt.  Rather, it will most likely address some of the concerns the Crown and child welfare workers may have about allowing you contact with the parties involved.

Although some measures you can take with respect to your release conditions have been identified above, there are numerous other avenues to pursue depending on the circumstances of your case.  It is important to retain counsel as soon as possible to first and foremost work on reuniting you with your family.

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Penalties for Domestic Violence Charges in Kelowna

The punishment for domestic violence can range significantly depending on the specific charge. A first-time conviction for domestic assault, for example, can result in anything from a peace bond to 14 years in prison. If you have a previous conviction for intimate partner violence, the maximum sentence for domestic assault is life in prison.

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 Kelowna 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. To learn more about potential resolutions please visit our Resolutions page, or read our FAQ on Resolutions and other sentencing options.

Defending Domestic Violence Charges in Kelowna

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

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 Kelowna?

If you have been charged with domestic violence in Kelowna, 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 Kelowna?

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.

What Next?

As discussed, domestic violence cases are very complex and fact-specific.

We have tried our best to provide a general outline of what you can expect if you find yourself in this situation. But this is just the tip of the iceberg.

To learn more about how we can help, please contact our team of Kelowna domestic violence lawyers to conduct a thorough review of your situation so that we can tailor a precise strategy that targets your successful defence.

Domestic Violence FAQs

  1. What is domestic assault?
  2. What is an emergency protection order?
  3. What are the best defences to a domestic assault charge?
  4. How can I get my domestic violence charges get dropped?

See More

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