Deals, plea bargains, and other resolutions to avoid trials in domestic criminal cases

Why do the majority of domestic criminal cases resolve without a trial?

Anyone charged with a criminal offence in Canada has a right to trial. Depending on the nature of the crime, they will be tried by either a Judge (most often) or a Judge and Jury made up of eligible citizens. This being said, most cases never go to trial for two reasons:

1. The accused does not want to take the risk of losing and going to jail and getting a criminal record


2. The accused does not want to wait the substantial amount of time it takes to get a trial date in jail or under onerous no contact release conditions (bail or undertaking)

Those who are out of custody in domestic cases are displaced from their family as a condition of their release. This means they cannot have any direct or indirect contact with their spouse/partner. It is not only extremely expensive to find alternative housing, it also creates myriad problems in dealing with financial issues and access/custody to the children.

In cases where the "victim" does not fear the accused and wants him/her to move back home, and where the accused is willing to undertake counselling and accept that their actions may have given their partner a reason to fear them, often the Crown Attorney will agree to vary the bail or undertaking to allow them to go back home. If the case is going to trial, such consent will not be provided. Other incentives may also be provided such as the eventual dropping of the charges guaranteeing the accused does not get a criminal record.

Many domestic violence incidents result in no long term harm or injury

Domestic cases often involve an alleged act of violence (hit, push, shove, grab, slap, punch), a threat of violence or death, or damage to matrimonial property. Often there is no actual injury or irreplaceable loss and for that reason the parties want to reconcile. The problem is that if a Judge believes what is alleged to have occurred they will find the defendant guilty regardless of whether the victim wishes for that to happen. Knowing many victims quickly change their mind, the police will often videotape the statement of the "victim" (known as a KGB statement) at the police station in case they are unable to testify or later change their story.

My spouse does not want to testify and will not show up in court

The reason this does not always work is that the Crown Attorney can subpoena the alleged victim which legally obligates them to attend court. If they fail to show up, they can be charged with disobeying a court order which is a serious offence. If they go back to the Police and change their story they will likely be charged with Public Mischief, Obstruction of Justice, or even Perjury, all of which are serious crimes. If the victim is unavailable to testify (death, has disappeared, left Canada, etc.), the Police can still use the KGB video statement of the incriminating statements as evidence. This is why such statements are taken under oath like conditions. It allows them to later be used in court against the accused.

The stronger the case against the accused, the less likely they will risk losing at trial. The Police know that many (perhaps even the majority) of domestic "victims" will quickly regret giving them a statement and for this reason documenting and recording their statements is one of their top priorities during an investigation. The fact that the victim is not able to easily change their mind and make the whole thing go away encourages defendants to make a deal to resolve their cases.

Not every deal is a good one: A lawyer must work to get a resolution for his client that does not result in a criminal record or jail time

In cases involving first time offenders who do not have an existing criminal record, it is extremely important that a conviction is avoided. Should the client be convicted they will likely lose their job, find themselves unemployable in the future for having a criminal record, and may be sentenced to jail time. While getting the bail/criminal undertaking changed to allow contact and communication is important, the long term, ultimate case result is the most important part of a resolution process.

Anyone charged with a domestic violence offence is facing consequences that will impact them for the rest of their lives. Preserving the long term employability and freedom of the accused must be the utmost priority for their lawyer.

For cases that go to trial, the prosecution will seek harsher punishments for accused who are found guilty at a trial

While the Crown Attorney may be persuaded to not seek a criminal record for an accused who is willing to undertake some counselling and resolve the matter, should that same defendant be found guilty after a trial their position will be much harsher. Crown Attorneys are much more likely to seek a criminal record and/or jail if the accused loses at a trial.

Plea bargaining may be seen by some as unfairly pressuring defendants who may be innocent to resolve their cases (rather than risk a trial) but it plays a huge part in the justice system in Canada, just like it does in the United States. The system is in many ways designed to promote efficiency through resolutions. The problem is that many defendants do not have adequate legal representation and as such end up taking deals that are not in their best interest.

Furthermore, in cases where the couple wants to get back together, it will often take many months or even over a year to get a trial date. This means the couple will most likely have to remain apart for that entire period of time which can be extremely expensive and difficult.


Call us today for a free assessment
You don't have to jeopardize your future or waste thousands of dollars on excessive legal fees. Our goal is to have the charges withdrawn and the release conditions varied to allow contact without a risky and unnecessary trial. We provide effective and affordable lawyer representation for those charged throughout all of Ontario, Canada.

You don't need to be apart from your spouse and family, spend tens of thousands of dollars, and risk getting a criminal record because of an unfortunate domestic incident. Have a skilled criminal lawyer protect you and your future from the stigma and consequences of a criminal record.





Are you a lawyer? If you are defending a domestic assault/uttering threats/mischief related case and are looking for expert advice regarding possible defences, case strategies, and information release management call us at: 647-228-5969.

Please note: We do not accept legal aid certificate cases. All clients are handled on a private retainer only.

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