When a case is domestic in nature, the accused person may be held for a bail; they will face an inability to return home, and there will be other conditions of release that are restrictive in nature. Based on our experience, we know that the ‘inability to return’ home is a condition that causes a great deal of stress and anxiety to many accused individuals. In domestic violence cases, bail conditions will prevent contact with their loved ones while their cases slowly navigate through the system. The policy behind the “no contact” condition is two-fold: to eliminate the possibility of further abuse/violence; and, to ensure there is no “witness tampering”. For example, in R. v. Khinda, [2020] O.J. No. 5330, the accused was charged with multiple Assaults against the complainant, his wife; he had slapped her on multiple occasions, bitten her, and had threatened to kill her with a knife. The accused was released on bail with conditions not to communicate with the complainant and not to attend at the family home. Even after the complainant wrote an affidavit stressing that she wanted her husband home as his absence had both financial and emotional impacts on the family—especially on their young daughter—the Court refused to vary the conditions of the accused’s bail; the public interest in ensuring that the complainant was protected from harm outweighed the need for variation.
Some individuals charged with domestic violence may be eligible for a Domestic Assault program called “PARS” or “Early Intervention”. It is important to keep in mind that these programs may not be suitable for everyone. Often these programs have terms, consequences and pitfalls. In many cases, these programs are misunderstood by accused people. It is therefore important to obtain the advice of Criminal Lawyers who are experienced in this area.
Bail conditions and Early Intervention complement each other, working not only to rehabilitate the accused, but also to protect the complainant. As noted in R. v. Sarahang, [2021] O.J. No. 1999, Early Intervention provides an “effective and rapid method of response, in appropriate cases, to the complexity of domestic violence offences in the criminal justice system. The bail system, where the terms have been explained to the accused and the accused has consented to them, is a vital component of the early intervention program, ensuring the safety of the complainant and the mitigation of the risk of re-offence while the accused completes the program.”
As with other forms of Assault, a person charged with Domestic Assault may be able to rely on the defence of self-defence. To do so, it must be shown that the person reasonably believed that force was being used or threatened against them or another person, and that the act constituting the Assault was committed to defend or protect themselves or the other person, and that it was reasonable in all the circumstances. In determining whether this test has been met, the court may look at the relationship and history between the parties. In a Domestic Assault case, this means history of prior violence may be considered in determining whether the accused was acting in self-defence.
