Domestic Violence

According to the Government of Canada, a vast number of people are victims of intimate partner violence (IPV) in this country each year. Domestic violence has been identified as a major global public health concern, linked to intergenerational violence that has physical, emotional and economic impacts on victims and society as a whole. Rates of police-reported domestic abuse rose in 2019, Statistics Canada ( Family Violence in Canada: A statistical profile, 2019 ) reports. Lockdown measures brought on by the coronavirus pandemic and the potential for accompanying stress raised concerns about a possible increase in family violence, according to the report. StatsCanada found that of the approximately 400,000 victims of police-reported violent crime in Canada in 2019, one-quarter were victimized by a spouse, parent, child, sibling or extended family member. The Canadian Women's Foundation reports that women are at greater risk than men of domestic violence, sexual assaultApplying force, threatening force, or causing someone to believe force will be used without consent. and harassment, and sex traffickingInfluencing the movements of a person in order to exploit them, adding Canadians spend $7.4 billion each year to deal with the aftermath of spousal violence. Different sections of the Criminal Code can be used to prosecute incidents of domestic abuse, including: physical and sexual violence such as: ­Subsections 265-268 - assault. Section 279(1) - kidnappingThe unlawful restraint of a person's liberty by force. Section 279(2) - forcible confinementThe act of holding a person against their will. Sections 279.01 to 279.04 - trafficking in persons. Subsections 280 - ss.283 - abduction of a young personA person dealt with under the youth criminal justice system.. Section 222(1) - homicide. Section 271 - s.273 - sexual assault Subsection 151, ss.152, ss.153, ss.155 and ss.170 - sexual offences against children and youth. Section 163.1 - child sexual abuse and exploitation material

Domestic violence is not one separate Criminal Code charge. It is usually prosecuted through other offences, depending on what happened. Common charges can include:

Assault 

Under ss.265-268, assault can include intentionally applying force to another person without their consentVoluntary agreement to engage in an sexual act, threatening by words, acts, or gestures to apply force, or accosting or impeding someone while openly carrying a weapon or imitation weapon. Assault can include simple assault, assault causing bodily harm, assault with a weapon, and aggravated assault. There is no mandatory minimum penalty for simple assault. Aggravated assault carries a maximum prison term of 14 years.

Kidnapping, Forcible Confinement, and Trafficking in Persons

Section 279(1) covers kidnapping. Section 279(2) covers forcible confinement. Trafficking in persons is a separate set of offences under sections 279.01 to 279.04 of the Code.

Kidnapping involves taking or holding a person for one of the purposes listed in s.279(1), such as confining them against their will, sending them out of Canada against their will, or holding them for ransom or service against their will. Forcible confinement means confining, imprisoning, or forcibly seizing another person without lawful authority. Trafficking in persons involves recruiting, moving, holding, concealing, harbouring, or controlling a person for the purpose of exploitation or helping exploitation happen.

Kidnapping is an indictable offence and can carry up to life in prison. Forcible confinement can carry up to 10 years in prison if prosecuted by indictment. Trafficking in persons can carry up to life imprisonment.

Abduction of a Young Person

Section 280 of the Code makes it an offence for any person, without lawful authority, to take a person under 16 out of the possessionHaving knowledge and control of something — not only physically holding it, but also an item kept somewhere else that you know about and control. of, and against the will of, a parent, guardian, or other person who has lawful care of that child.

Section 282 deals with parental abduction of a child under 14 in breach of a custody or parenting order. Section 283 deals with parental abduction of a child under 14 whether or not there is a custody or parenting order.

If the kidnapped person is under 16, s.279(1.1) says the maximum penalty is life imprisonment. If the victim is under 16 and the offender is not a parent, guardian, or person with lawful care of that child, there is a mandatory minimum sentence of five years. If the offender is a parent, guardian, or person with lawful care, the maximum can still be life, but that five-year minimum does not apply. If a firearm is used, different mandatory minimums may apply, depending on the type of firearm and the circumstances.

Homicide 

Section 222 of the Code defines homicide as causing the death of another person, directly or indirectly. Categories of culpable homicide in Canada include first-degree murder - s.231, second-degree murder - s.231(7), and manslaughter - s.234.

There is generally no mandatory minimum sentence for manslaughter unless a firearm is used. If a firearm is used in a manslaughter offence, the minimum sentence is four years in prison. Both first-degree and second-degree murder carry a mandatory life sentence. Parole eligibility is set at 25 years for first-degree murder and 10 to 25 years for second-degree murder.

Sexual Assault 

Sexual assault means sexual contact or conduct without legal consent. It can include unwanted sexual touching, sexual activity with someone who is too young to legally consent, sexual activity with someone who is asleep or unconscious, or sexual activity with someone who does not agree.

Sexual assault offences include sexual assault - s.271, sexual assault with a weapon or causing bodily harm - s.272(1), and aggravated sexual assault - s.273. Penalties vary by offence and by how the Crown proceeds. For sexual assault under s.271, there is no mandatory minimum when the complainant is an adult. If the complainant is under 16, the minimum is six months on summary conviction and one year on indictment. The most serious sexual offences can carry up to life imprisonment.

Sexual Offences Against Children and Youth

There are various charges in the Code that deal with sexual offences against children.

Section 151 makes it an offence, for a sexual purpose, to touch any part of the body of a person under 16, directly or indirectly.

Under s.152, it is an offence, for a sexual purpose, to invite, ask, counsel, or incite a person under 16 to touch any person, directly or indirectly.

Section 153(1) applies to sexual touching or invitations involving a young person where the accused is in a position of trust or authority, the young person is dependent on them, or the relationship is exploitative.

Incest is covered under s.155 and involves sexual activity with certain close blood relatives.

Section 170 makes it an offence for a parent or guardian of a person under 18 to procure that person for prohibited sexual activity.

Penalties for sexual offences against children vary by section and can include prison sentences of up to 14 years or more, depending on the charge.

Child Sexual Abuse and Exploitation Material

The Criminal Code now uses the term child sexual abuse and exploitation material. Making, printing, publishing, or possessing that material for the purpose of publication can lead to a maximum sentence of 14 years in prison under s.163.1 of the Code.

Every case comes down to the evidence. The Crown prosecutorA lawyer who conducts a criminal prosecution on behalf of the public. must prove beyond a reasonable doubtThe standard that must be exceeded to find someone guilty that you committed the specific offence charged. The Crown does not have to prove a separate item called "the complainant or witness is not fabricating." The court weighs each witness's credibility when deciding whether the Crown has proved the charge. If the evidence leaves a reasonable doubt, you must be found not guilty. Any forensic evidence linking you to the crime can be challenged. Your lawyer may be able to show that your rights under the Canadian Charter of Rights and Freedoms were breached during a police investigation.

Because there are different sections of the Code to deal with domestic violence it is considered a hybrid offenceAn offence the Crown can proceed with summarily or by indictment., which allows the Crown prosecutor to proceed with the charge as an indictable offenceA more serious type of Canadian criminal offence. or by summary convictionUsed for lesser offences. You will face more severe penalties such as prison if the Crown proceeds with the charge as an indictable offence.

The Criminal Code does not use 'domestic violence' as one offence name. Abuse of an intimate partner or family member may be charged under offences such as assault, assault causing bodily harm, criminal harassment, uttering threats, forcible confinement, or other offences depending on the facts. The intimate-partner or family context can also affect sentencing.

In intimate-partner or family cases, the relationship context can be an aggravating factor at sentencing. For repeat intimate-partner violence, s. 718.3(8) may also allow a higher maximum sentence for some indictable offences.