QUICK TAKEAWAY
Domestic Violence: Domestic violence, also known as domestic abuse or intimate partner violence (IPV), is “a pattern of behaviour in any relationship that is used to gain or maintain power and control over an intimate partner,” according to the United Nations (What Is Domestic Abuse?). Abuse can be emotional, physical, sexual, economic or psychological actions or threats that influence another person. While there is no specific offence of family violence in the Criminal Code, the Department of Justice (DoJ) states most acts of family violence are crimes in Canada. Several sections of the Criminal Code can be used to prosecute domestic violence incidents, including assault, sexual assault, kidnapping and homicide. Depending on the charge laid, you could face life in prison.
Table of Contents:
What is 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 assault and harassment, and sex trafficking, 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 - assaultA person commits assault when, without consent, they apply force intentionally to another person.
- Section 279 (1) - kidnappingThe unlawful restraint of a person's liberty by force and forcible confinementThe act of holding a person against their will, traffickingInfluencing the movements of a person in order to exploit them in persons.
- Subsections 280 - ss.283 - abduction of a young person12 years old or older, but less than 18.
- 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 pornography
Charges used to Prosecute Domestic Violence
Domestic violence is a complex issue with multiple dimensions and causes, according to the DOJ. The Criminal Code sections used to prosecute include:
Assault
Under ss.265-268 you can face prosecution if you apply intentional force directly or indirectly on a victim without their consentVoluntary agreement to engage in an sexual act. You can also be charged if you threaten, either by act or gesture, to apply force to another person or if you confront someone while openly wearing or 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 minimum penalty for simple assault while aggravated assault carries a maximum prison term of 14 years.
Kidnapping Forcible Confinement, Trafficking in Persons
Section 279 (1) covers the offences of kidnapping, forcible confinement and trafficking in persons. Kidnapping is confining a person and moving them to another location while forcible confinement is the act of holding someone against their will. Both can involve the use of threats, duress, force or the exhibition of force. Trafficking in persons involves "the recruiting, transporting, transferring, receiving, holding, concealing or harbouring, or the exercise of control, direction, or influence over the movements of a person, in order to exploit or facilitate the exploitation of that person," according to Public Safety Canada. Kidnapping is an indictable offence punishable by a maximum sentence of life in prison, while the maximum jail term for forcible confinement is a sentence of up to 10 years. Trafficking in persons carries a maximum penalty of life imprisonment.
Abduction of a Young Person
Section 280 of the Code makes it an offence for one parent or family member to take a child without the permission of the parent who has custody. Even if the child agrees or wants to go with one parent, it could be considered child abduction if the other parent does not know or has not given permission.
Section 282 makes it illegal to entice, detain or harbour a child "in contravention of a custody order or a parenting order made by a court anywhere in Canada."
Section 283 states it is illegal for a parent, guardian or person having the lawful care or charge to take, entice away, conceal, detain, receive or harbour a child under the age of 14, whether or not there is a custody order. If the kidnapped victim is under 16, s.279 (1.1) states the maximum penalty is imprisonment for life. If the offender is a parent, guardian or person having the lawful care or charge of the person, they will receive a minimum punishment of five years in prison. If a non-restricted firearm is used without any connection to a criminal organization, the minimum penalty is four years in prison, with the maximum sentence imprisonment for life.
Homicide
Section 222 (1) of the Code states that a person commits a homicide when, directly or indirectly, they cause the death of the victim by threats or fear of violence or by deception to do anything that causes their death. Categories of homicide in Canada include first degree murder -s.231, second degree murder - s.231 (7) and manslaughter - s.234.
There is no minimum sentence for manslaughter, with penalties ranging from probation to life imprisonment. If you are charged with using a firearm at the time of the offence there is a minimum prison sentence of four years. Both first-degree and second-degree murder carry a mandatory life sentence. Parole eligibility is set at 25 years for first degree and 10 to 25 years for second degree murder.
Sexual Assault
Sexual assault is defined as any touching of another person without their consent that is of a sexual nature, or where the sexual integrity of the victim is violated. Sexual assault includes unwanted kissing or groping over the clothes, consensual sex with someone too young to consent, sexual activity with someone who is asleep or unconscious, sexual activity with someone who is unwilling, as well as disciplining a child by striking them below the waist.
Sexual assault offences include sexual assault s.271, sexual assault causing bodily harm and sexual assault with a weapon - s.272 (1), and aggravated sexual assault - s.273.1. Depending the offence, you could face a minimum punishment of six months in jail 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 to touch, directly or indirectly, any part of the body of a person under the age of 16.
Under s.152 it is an offence to invite or ask a person under the age of 16 to touch, directly or indirectly, a part of your body.
Section 153 (1) of the Code makes it an offence for a person in a position of trust or authority of a young person to touch them, directly or indirectly, or to invite them to touch someone else.
Incest is covered under s.155 and involves a victim who is a blood relative.
Section 170 states that any parent or guardian of a person under the age of 18 years who procures a person for the purpose of engaging in any prohibited sexual activity is guilty of an indictable offence.
Penalties for sexual assault offences against children vary and could include prison sentences of up to 14 years.
Child Pornography
Making, printing, publishing or possessing any child pornography for the purpose of publication can land you in jail for a maximum of 14 years under s.163.1 of the Code.
What is Needed to Convict
Every case comes down to the evidence. The Crown prosecutorLawyers who prosecutes charges on behalf of the Crown must prove beyond a reasonable doubtThe standard that must be exceeded to find someone guilty that you committed the offence and the victim is not fabricating the testimony against you. 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.
Treated as a Summary Conviction or Indictable Offence
Because there are different sections of the Code to deal with domestic violence it is considered a hybrid offenceAn offence prosecuted either as a summary conviction or as an indictable offence, which allows the Crown prosecutor to proceed with the charge as an indictable offenceIndictable offences are more-serious criminal offences 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.
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Maisonneuve Dawkins Professional Corporation
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Glossary of Legal Terms
Assault
A person commits assault when, without consent, they apply force intentionally to another person or just threaten such an action. A person can also face this charge if they openly wear or carry a weapon/imitation weapon.
Consent
The voluntary agreement of the complainant to engage in the sexual activity in question.
Crown prosecutor
Lawyers who act for the federal, provincial and territorial governments and prosecute people accused of crimes on behalf of the Crown.
Forcible confinement
Unjustly holding anyone against their will through the use of threats, duress, force or the exhibition of force.
Hybrid offence
Hybrid offences fall between a summary and an indictable offence. The Crown prosecutor chooses whether to treat the offence as a summary or indictable offence.
Indictable offence
Indictable offences are the most serious offences under the Criminal Code and they come with more serious punishments, up to a maximum penalty of life in prison.
Kidnapping
The unlawful restraint. confinement or imprisonment of a person against their will. It also includes transporting them against their will or holding them for ransom.
Reasonable doubt
The Supreme Court of Canada has said that reasonable doubt “falls much closer to absolute certainty than to proof on a balance of probabilities” and “that something less than absolute certainty is required, and that something more than probable guilt is required."
Summary conviction
Summary convictions are used for lesser offences with penalties, fines and short jail time. They reflect the majority of offences as defined in the Code.
Trafficking
The recruitment, transportation, harbouring and influence over the movements of a person in order to exploit them, typically through sexual exploitation or forced labour. It is often described as a modern form of slavery.
Young person
Those 12 years old or older, but less than 18.
