Criminal Law, Family

Domestic violence and the police: a primer

By Staff

When alcohol or high emotions lead to physical conflict in a marriage, all too often one partner will call the police and then live to sorely regret it, says Toronto criminal and family lawyer Leanne Townsend.

In her years of experience as an assistant Crown attorney, as well as on the defence side, she has witnessed many instances where the sledgehammer of the law came down too hard for both parties in a marriage that was going through difficulties, says Townsend, a partner with Brauti Thorning LLP.

“One of the common things I’ve seen, no matter which hat I’ve been wearing, is where one partner, often the woman, calls the police because they’re fighting, and maybe he’s getting aggressive or he’s drunk and punching a wall, which is still aggressive. The woman calls 911, thinking they will take him somewhere overnight and that will be the end of it,” Townsend tells

The wife expects that the next day, when he’s sobered up and they are no longer fighting, it’ll be business as usual, she says.

“They don’t realize that once they put in that call to the police they lose complete control over what’s going to happen. The police come, and if there’s any allegation of a criminal offence — assault, or mischief for punching a wall — police have to lay a charge. It’s not the complainant’s decision,” she says. “Once the charge is laid it’s under the jurisdiction of the Crown to decide whether it’s going to proceed or not, and they have very strict policies they have to follow.”

Townsend emphasizes that when there's abuse in the home, calling the police is the right thing to do.

“I don’t want people to think I believe that anyone assaulting someone shouldn’t be charged and suffer the consequences,” she says. “But I do think many don’t fully understand the ramifications when they make that call to police.”

Many times, people are under the mistaken impression they can tell police they don’t want charges laid — they just want the partner out for the night — or they think they can withdraw the charges later, but it is not their decision, Townsend stresses.

Once a charge has been laid, the accused spouse will be put under conditions to have no contact with their partner and to stay out of the home.

“That may go on for a year before it’s resolved in court,” Townsend says.

She describes one case involving a woman whose husband was a dentist who had been a respected figure in the community and a good husband and father until he developed a drinking problem in his mid-50s. The couple would get into arguments over his drinking, and one evening he punched a wall and threw the phone at her when she attempted to call for help, Townsend says. Ultimately, she succeeded in calling the police, who came to the house and charged him.

“It didn’t matter that they’d been married 25 years and had teenage sons — he was out of the home, no contact, couldn’t go to the children’s activities if she was there, all of that,” Townsend explains. “The wife totally regretted it. She just wanted him out that evening. When she was speaking to the police about what was happening she didn’t understand that she was giving evidence and that he’d be charged.”

Years ago, when domestic violence wasn’t taken as seriously by the courts, there were situations of women getting beat up pretty badly or murdered, and many women’s groups, rightly so, advocated for tougher policies, which were brought in, she says.

“Because victims sometimes recant or don’t show up in court, policies were implemented to protect them despite themselves," Townsend says.

"The problem is that any time you have a general policy, there’s a specific situation that perhaps shouldn’t be accounted for in the protocol. That’s why police and Crowns should have discretion. But sometimes they are reluctant to exercise their discretion because it puts them in a vulnerable position should something go wrong down the road."

The case involving the dentist was ultimately resolved with a peace bond, she says. The husband agreed to go through counselling and overcame his drinking problem.

Peace bonds are one potential solution for first-time offenders with no pattern of violence, and they don’t result in a criminal record, Townsend says.

Another option is an early intervention program under which first-time accused can plead guilty, attend counselling and then receive a conditional discharge. However, even a conditional discharge can result in unforeseen consequences and impede travel to the U.S., for instance, Townsend says.

Another alternative available to a spouse who has second thoughts after calling police is to go to the Victim/Witness Assistance Program at the courthouse and provide an “input,” Townsend says. Workers will help the person fill in a form with such questions as “What would you like to see happen?” and “Do you want to continue the relationship?” The Crown will see this form, but the defence will not.

Townsend recommends that anyone considering calling police on their spouse first ask themselves a couple of questions: Am I in danger or am I just upset? If I can’t get the person to leave the house, can I leave myself and see if the situation has cooled down tomorrow? Is this behaviour a regular occurrence?

It is important, before making that call, to understand the legal ramifications, she says, reiterating that "calling the police is imperative when anyone feels they are being threatened with violence."

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