In my practice, the two most common types of cases I see are DUIs and domestic assault. Domestic assault would include any sort of assault charge like simple assault, assault causing bodily harm, assault with a weapon, and aggravated assault. It would also include utter threats (to cause death or bodily harm). Domestic charges are between two people were in a romantic relationship at the time of the allegation including dating, common law, or marriage.
The Criminal Code tells us that when someone is sentenced for a domestic violence crime, the judge must impose a more severe punishment. In other words, we want to deter crimes against domestic partners because the trust in the relationship is abused when there is domestic violence. Crimes against children and police officers also require a more severe punishment after a guilty plea or conviction.
Now, many accused individuals want to know how the charges can simply be dropped. What many people do not understand is that the decision is NOT up to the victim, the complainant, or any witness. The decision about whether to proceed with charges or not is only up to the Crown Attorney. Having said that, many Crown Attorneys consider the input from victims and complainants.
In Manitoba, there is a government agency called Victim Services that is designed to help provide information and support to victims and complainants. Victim Services relays information to the Crown Attorney's office. To phone Victim Services in Winnipeg you can call (204) 945-6851.
So, even if the victim or complainant does not want to come to court or testify, those decisions may not be up to him or her. If the Crown Attorney is proceeding with the charges and a trial date is set, any witnessss that are needed for trial will be served with a subpoena. A subpoena is a court order that requires a witness to attend court and provide evidence (testimony). If a witness is served with a subpoena and does not attend court, the Crown Attorney can request a warrant for his or her arrest. If a witness attends court and refuses to testify, the Judge may hold the witness in contempt of court - which is a criminal charge. Court proceedings are serious and many people need to learn that the charges may not simply be dropped if someone does not want to testify. That's why I recommend everyone who is charged with a domestic charge to seek legal advice. Criminal charges are serious and you need help to face them.
Finally, in almost every domestic violence case, there is a no contact order put in place either by the police or by a Judge. Sometimes, the victim or complainant requests a no contact and in other cases they don't, but it is up to the police or the Judge to decide what conditions are appropriate for bail. The order is on the person who was charged, which means he or she cannot contact or communicate with the victim or complainant. Typically, the no contact order is only one way - and the victim or complainant is legally allowed to contact the accused but if the accused responds, then the accused is breaking the law and can be charged with a new criminal offence. The accused can apply to delete the no contact order but it is in effect until the change is approved by a Crown Attorney or a Judge.
About the author
Michael Dyck is a partner at Rees & Dyck Criminal Defence. He represents clients primarily from Winnipeg, Steinbach, and rural Manitoba. He has extensive experience helping people charged with criminal offences and focuses on building legal strategy with clients. To read more of his articles, please visit his partner's website TomRees.ca.