In this third and final blog article dealing with the procedure of a criminal charge within the contexts of family separation issues, I will pick up where I left off in my second blog, at the crown resolution meeting.
As indicated in my last article, one of the focuses of the crown resolution meeting is to explore a resolution of the criminal charge.
The range of resolution options available to the crown attorney are:
- a withdrawal of the charge
- that the client to enter into a peace bond
- an absolute or conditional discharge
- a suspended or conditional sentence and/or
In a domestic assault scenario, an adjunct to the above noted dispositions is a condition, usually enforceable through a period of probation, that the client receives anger management counseling, either individual counseling or group domestic counseling session of four months duration called PARS.
In both anger management counseling scenarios, the client would provide a positive report from the counselor.
The client, fundamentally, has two choices in relation to the criminal charge:
1. Enter a Guilty Plea: . In the event that the crown attorney and client can agree upon a sentence, the charge will proceed to a guilty plea with a Judge receiving a joint sentence proposal whereby both the crown and defence counsel join in on a sentencing proposal. In entering a guilty plea, the client must first accept responsibility for all of the essential elements of the offence (ie: in the case of assault that he intentionally applied physical force to the complainant without her consent). The client must also be entering his guilty plea freely and voluntarily and under the understanding that, even with a joint submission, there is no guarantee that the Judge will accept the joint sentence proposal.
2. Elect to Proceed to Trial: At trial, the onus is on the crown attorney to prove all of the elements of the assault charge beyond a reasonable doubt. In the event that the client is acquitted at trial, the criminal charge and any release conditions that the client has been subject to come to an end. In the event that the client is convicted at trial, the crown may request a harsher sentence than the sentence the crown was prepared to agree to in the event that the client entered a guilty plea. The harsher sentence after a trial is to reflect the fact that the client had not demonstrated any remorse and had required the complainant to attend at trial and be subject to cross examination. From a family law context, the conviction at trial could be used in evidence by the complainant in family court.
From a timing standpoint, electing to proceed to trial will mean that the criminal charge will remain unresolved for several months until the trial date. Release undertakings will remain in effect unless defence counsel is able to arrange a variation, with or without consent of the crown, until trial.
A resolution of the charges( a guilty plea or a peace bond disposition )can take place fairly quickly. A guilty plea by the client can, however, be used as evidence in the family court context.
Assuming the client does not have a criminal record, the most frequent charge dispositions range from peace bonds to conditional discharges.
1. Peace Bond: A peace bond is, in essence, a private undertaking that the accused enters into to keep the peace and be of good behavior for a period of 12 months. There is usually a condition imposed as part of the peace bond that the client have no contact or communication or association, directly or indirectly, with the complainant during the period of probation, unless such communication is pursuant to a written revocable consent that the complainant executes and files with the crown attorney’s office. The non communication condition can also be excepted by a family court order.
The condition in relation to communication with the complainant is frequently inserted as a period of probation in the conditional discharge/suspended sentence dispositions as well.
The attractiveness of a peace bond disposition is that the criminal assault charge is withdrawn. Because the peace bond is a private undertaking given by the client to the court, it is not a conviction for criminal record purposes.
2. Conditional Discharge: The conditional discharge disposition is the most frequent of sentences in domestic assault situations. The procedure involves the client entering a guilty plea to the assault charge. The client is then placed on probation for 12 months with conditions similar to the conditions described in relation to the peace bond. In the event that the client successfully completes the period of probation he receives a discharge from the offence. The discharge is not, for criminal record purposes, a criminal conviction and the client therefore remains conviction free.
The fact of the client entering a guilty plea to the charge is, however, evidence which can be used in the family court proceeding.
3. Suspended Sentence: A suspended sentence is similar to the conditional discharge disposition in that the client is placed on probation and, if the client successfully completes the period of probation, his sentence is completed. The suspended sentence disposition is, however, a criminal conviction and client will end up with a criminal record.