Reasonable Doubt: The unfortunate intersection of criminal and family law, part two
In my last article, I wrote about how criminal law and family law intersect with spousal assault charges. I outlined several of the obvious and immediate problems that arise for someone charged with this type of offence.
A guilty plea or conviction for spousal assault can have serious consequences for your family matter. Your ex-spouse may try and use the fact that you’ve been sentenced (or even that you’ve been charged) as ammunition against you in a family court proceeding. Also, it’s exceedingly messy when children are involved. Sometimes the Ministry of Children and Family Development will step in and remove the children from the home. I always recommend that the accused speak to a family lawyer about how the criminal matter will affect family court proceedings.
If you can’t afford a lawyer and aren’t eligible for legal aid, you can speak to family duty counsel at the courthouse for free. While the advice might not be as detailed as you’d like due to time constraints placed on family duty counsel (there are only so many people they can see in a day), you can probably get some preliminary advice. You can also book an initial consultation with a family lawyer; if you can’t pay, just make sure that the initial consultation is free. In addition, there are family lawyers available to represent you for free through the Access Pro Bono Society of B.C. You don’t have to go through this ordeal alone—there are resources out there to assist you.
Many accused who are charged with assaulting a current or ex-partner often wonder why the Crown won’t just drop their case. I’ve heard it all: they feel that the incident was minor; it should be a private family matter; it’s he-said-she-said; there were no witnesses; the complainant is lying; they want to reconcile with the complainant or continue the relationship; they hear that the complainant won’t show up for trial; this is tearing their family apart; it’s taking too long, the family can’t stay apart for this long. Or if a client takes steps to improve themselves by taking counseling or anger management classes, they ask me, "I’m doing all the things I need to do to change, why won’t the criminal charge go away?"
What the accused may not realize is that as soon as criminal charges are laid, their fate is solely in the hands of the Crown. No one except the Crown prosecutor has the power to pull the plug on a charge. That’s why it’s so difficult for some clients to understand that, even if the relationship is continuing and the complainant says he or she doesn’t want to testify, that doesn’t matter. It’s not up to the complainant.
Spousal assault files are often messy. There’s a history between the parties that colours and shapes the relationship, the file, and the way the client wants the matter to proceed. Sometimes there was simply an ugly breakup, sometimes there’s a bitter custody battle over the children, and sometimes the couple wants to stay together and they plead for something to be done quickly so that they can be reunited.
Unfortunately things don’t move like that in criminal law. Yes, you’re on highly restrictive conditions and there are reasons for that. No, the Crown won’t suddenly drop the case early in the process. Why, you ask? Because the Crown treats instances of domestic abuse very seriously. The Crown doesn’t want to take the risk that if it allows you contact with the complainant or if it directs a stay of proceedings on the charges, you’ll cause the complainant further harm. The conditions are there to ensure the complainant’s safety and to ensure that you’re monitored in the community.
There are a number of things that can be done on a spousal assault file and that’s why it’s best to consult with a lawyer to find out what your options are. Can’t afford a lawyer and aren’t eligible for legal aid? Talk to criminal duty counsel at the courthouse. Contact the Law Students Legal Advice Program through UBC. Get a free consultation with the criminal defence lawyers who offer them. Whatever you do, ask for help. That way, you won’t be left wondering why the law is moving the way it is, sweeping you along for the ride.
Reasonable Doubt appears on Straight.com on Fridays. The column's writers, Laurel Dietz and Nancy Seto, are criminal defence lawyers at Cobb St. Pierre Lewis. You can send your questions for the column to them at email@example.com.
A word of caution: Don't take this column as personal legal advice, because it's not. It is intended for general information and entertainment purposes only.