We get a lot of calls from victims of domestic violence looking for legal support. Understandably, the majority of these callers are women seeking answers in the immediate aftermath of a police investigation. By the time they reach our law firm, the husband, common law or dating partner has been arrested. The victim has been informed that a domestic no contact order has been imposed, and that any further contact between the parties could result in further charges.
Contrary to popular perception, without legal support or the ability to talk to their loved one, many victims of domestic violence are actually at their most vulnerable after their partner’s arrest. The trauma of a major relationship conflict, the unexpected intensity of a police investigation and the complete lack of certainty about the future causes these women – and men – to feel profound legal and emotional anxiety.
“What will happen next?”
“When will I be able to communicate with my loved one again?”
“How will we manage childcare, or the finances?”
“I didn’t want these charges. Why didn’t the police listen to me?”
And
“How can I help my loved one to resolve their case?”
As a law firm specializing in domestic violence cases, helping victims of domestic violence is a core area of our practise. After years of listening to their concerns and fighting for them in the Canadian legal system, we’ve honed an approach to victim advocacy that is boils down to providing them with the two things they need most: answers, and a strong voice.
How a Lawyer Can Help Victims in Domestic Violence Cases
In this article we examine how a domestic violence lawyer can help victims following their partner’s arrest. More narrowly, we focus on what a lawyer can do to help bring the parties back together where
a) the original charges were unwanted, or
b) the parties have since determined that they wish to reconcile.
As we explain at length in our other public-facing content on the issue, many domestic charges are initiated and prosecuted against the wishes of the putative victim. In these cases, the no contact order - intended to protect the victim - can actually produce more harm than good. As hundreds of our own clients have learned the hard way, victims are powerless to force the Crown or police to drop domestic charges. Once police have made an arrest, the victim's role in domestic cases shifts from initiator, to spectator.
Prosecutors tend to view domestic assault cases through the lens of evidence and accountability. If a victim is opposed to participating in the case, they are simply an obstacle to these aims.
For simplicity, throughout this article we use the term “victim” in place of the more neutral language “complainant”. We do so because all Canadians understand what is meant by the term victim, whereas complainants themselves have often never heard of the term.
The question of how a domestic assault lawyer can help a victim is worthy of examination because, unlike an accused person, victims do not face any immediate legal jeopardy. Jail time, a criminal record, or the other lasting consequences of a criminal conviction for domestic violence have no application to victims. Furthermore, programs like the Victim Witness Assistance Program are free of cost and appear to have the victim’s best interests in mind.
As we will see, however, there are no free lunches. The men and women who want to maximize the probability of achieving their objectives should not and cannot rely on victim services to advocate for them.
What Makes Domestic Violence Cases so Unique
So why should a victim of domestic violence hire their own lawyer? The answer lies in the unique and challenging nature of domestic violence cases, which are in many ways the black sheep of the criminal justice system.
Consider that most non-domestic crimes are made up of an isolated act. A witness sees a man steal a bottle of liquor, thereby committing theft; a R.I.D.E. program detains a driver who turns out to be drunk; a prolific bank robber is identified after their last botched attempt.
Although the background of the offender may play a part in understanding the incident, legal proof of the crime does not extend into the offender’s personal history – much less the feelings of the witnesses toward the offender.
It is extremely common for victims and prosecutors to want opposing things in the same domestic violence case. In fact, in our experience, they rarely see eye to eye.
Domestic cases, on the other hand, wade deep into these uncharted waters. By definition they showcase a current or former intimate partner as a star witnesses. As a result, personal feelings and interpersonal histories are always bootstrapped to the case. Raw emotions do often govern the prosecution’s assessment of their file. And the desire to reconcile - whether to maintain a family or simply go on being a couple – often cuts against the grain of the justice system’s desire to hold offenders accountable.
Because of these dynamics, it is extremely common for victims and prosecutors to want opposing things in the same domestic violence case. In fact, in our experience, they rarely see eye to eye. Prosecutors tend to view domestic assault cases through the lens of evidence and accountability. If a victim is opposed to participating in the case, they are simply an obstacle to these aims.
Victims, on the other hand, see things in the inverse terms. Their experience and objectives are informed by family dynamics, interpersonal history and the desire to heal – whether with the accused or alone. They often view the no contact order and the prosecution itself as the main obstacles to achieving their goals.
Between the victim’s complex personal history and the purely legal objectives of the prosecutor is a chasm of understanding: one which is best filled by the skilled advocacy of a lawyer specializing in domestic violence cases.
What Can a Domestic Violence Lawyer Do for Victims?
We answer this question by reference to our own procedures, perfected over time.
At Shaffie Law we recognize that not all domestic victims come to our firm with a clear sense of the legal services they need. Some just want to be heard and feel supported by a professional. Others want answers to specific questions. Most commonly, though, victims call our firm wanting a firmer grasp on the concrete steps they can take to resume normal life with their partner.
As hundreds of our own clients have learned the hard way, victims are powerless to force the Crown or police to drop domestic charges.
As a result, our victim services are broken into two stages: an initial assessment, and advocacy. This model, developed over time, achieves Shaffie Law's twin goals of providing answers to victims who need them (initial assessment), and a powerful voice to those who want one (advocacy). This model also permits victims to decide whether and how far they wish to become involved in the court case based on a robust assessment of the case.
a. Stage One: The Initial Assessment
Shaffie Law's assessment process involves a formal consultation lasting between one to one and a half hours. Due to the resources required, we are unable to provide these consultations a complementary basis.
Many clients who call the firm want to know if they should file an affidavit, or send a letter to victim services, the police or the Crown. These are often men and women who did not want domestic charges pressed in the first place, or who believe that their interests would be best served through the termination of the prosecution process.
The purpose of the consultation is to familiarize ourselves with the client, their objective(s), the history of the relationship and the actual evidence seen and collected by police. Based on this information, we are able to advise victims on a broad range of issues: the likely outcomes in the case, how these outcomes may impact the client and their partner, how long the case will take, and the viability of lifting the no contact order. Additionally, the consultation permits us to make an assessment of whether and how the client’s further involvement in the case is warranted.
b. Stage Two: Advocacy in the Case
Many clients who call the firm want to know if they should file an affidavit, or send a letter to victim services, the police or the Crown. These are often men and women who did not want domestic charges pressed in the first place, or who believe that their interests would be best served through the termination of the prosecution process.
For these clients, the initial consultation is designed to provide a reliable assessment of whether, and how best, to furnish additional information to the authorities managing the case. In most cases, based on the contents of our consultation, our law firm will recommend authorizing a detailed complainant input letter.
What is a Complainant Input Letter?
Complaiant input letters are designed to bridge the gap between the one-dimensional, police-generated file sitting on the Crown’s desk and the reasons informing the victim’s desired outcome. By providing critical background information and signalling that the victim understands their legal rights, these letters can reconcile the competing interests of the victim and the Crown. Combined with the efforts of a defence lawyer representing the accused, our detailed victim input letters often lead to exceptional results, including the full withdrawal of the domestic assault charges.
What is an Affidavit?
In other, rarer cases, our law firm may recommend the preparation of an affidavit. Unlike input letters, affidavits are actual items of evidence which are injected into the case. More specifically, they are statements signed, under oath, by the victim themselves.
Affidavits are powerful tools with the ability of dismantling, or enhancing, domestic violence prosecutions. However, because they are sworn statements they should be approached with extreme care, under the supervision of a skilled lawyer.
As we explain elsewhere in our extensive catalogue of materials on domestic violence law, affidavits are a wildly misunderstood legal tool in domestic violence cases. We believe this is due to unscrupulous digital marketing targeting victims in a vulnerable state.
Why Victims Should Resist Writing to the Crown
Lots of domestic violence victims send heartfelt letters to the Crown or police in the immediate aftermath of an unwanted domestic charge. Motivated by the mistaken belief that they can “drop” the case, these efforts almost always fall on deaf ears. In some cases they even worsen the problem.
Victim services is an arm of the government – the same government responsible for arresting and prosecuting the client’s intimate partner.
Our law firm cannot recommend these entrepreneurial efforts – especially if victims are serious about resolving a case. Simply put, the stakes are too high, and the vast majority of victims are not equipped to interpret or navigate the criminal justice system.
Ontario domestic assault cases are complicated. Sending emotional letters to the Crown or police, though fuelled by good intentions, is like trying to land an airplane by mashing buttons in the cockpit. Legal problems call for legal solutions, and those clients who want to achieve their objectives of reunification would do well to notice the pilot sitting in the back row.
Why Victims Should Not Rely on Victim Services
Similarly, it is important for victims to recognize that victim services is not a substitute for personal legal representation. Victim services is an arm of the government – the same government responsible for arresting and prosecuting the client’s intimate partner. In the court process, they are utilized by the Crown as for collecting extremely basic "victim input" on a boilerplate form.
Although victim services plays an important role providing victims with emotional support, community resources and periodic updates on the court process, victim services does not provide legal representation and will not advocate for the victim’s interests.
The Case for Hiring a Domestic Violence Lawyer
Because of Canada’s mandatory charging policies in domestic cases, Crown Attorneys across Ontario are inundated with domestic files. Each one presents a portrait of a couple at their very worst. Beneath this portrait, however, is a rich history of love, grief, family and hope. The Crown doesn't get to see this side of the case. In the vast majority of cases they view the parties through the keyhole of police disclosure.
Drowning in a sea of similar files, it is easy for Crown Attorneys to ignore letters from victims or the boilerplate forms of victim services. What is difficult to ignore, however, is the clear and persuasive message of a domestic violence law firm representing a victim who insists on being heard.
We hope this article helped the men and women who are victims in domestic cases to understand the benefits of hiring a domestic violence lawyer. As always, feel free to contact our law firm any time to schedule a consultation.
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