26 Criminal Court

The legal system of criminal law is concerned with protecting the public and maintaining societal safety and values. Criminal law is a branch of law that prohibits illegal conduct and sets out punishments for unlawful actions.^[1]

The federal legislation, Criminal Code, sets out many of the offences and procedures in regard to criminal law in Canada. The lawyer representing the government in these matters is known as the Crown Attorney (Crown). The Crown is responsible for initiating the court proceeding against an individual who has been charged with misconduct under criminal law.^[2]

In Ontario, the court office that handles criminal charges is the Ontario Court of Justice (OCJ); however, this court has developed specialized programs to expedite specific matters.^[3]

Domestic Violence

Although domestic violence, or partner abuse, does not have a designated charge within criminal context, there are charges that may be laid against illegal actions of an abusive partner.

The following are illegal actions that are criminal in nature:

• Assault – this crime is executed when a partner threatens, attempts, or succeeds in applying force to their partner without their consent. The victim is not necessarily physically touched or hurt.
• Sexual assault – this crime comes in the form of unconsented sexual acts or physical touch. This is still a crime although the victim is not physically hurt.
• Forcible confinement – this is a crime when a partner physically prevents or threatens their partner to stay or not leave a location.
• Uttering threats – this is a crime to threaten another individual.
• Criminal harassment – this crime is defined as stalking, harassing phone calls, or unwanted visits to an individual’s home or place of work.^[4]

Parties

In a criminal court case, the parties involved in a legal Proceeding are the accused, also known as the defendant, and the Crown. When the matter is regarding domestic violence, the defendant may be prosecuted for an incident that occurred between them and the victim. While the victim is not directly involved in the criminal matter, they will likely play the role of a witness for the Crown during the proceeding.

Purpose

It is the responsibility of the criminal court to decide whether a defendant is guilty.

Legal Test

As previously described, legal tests are applicable methods of evaluation in order to resolve matters before the courts. In criminal court, the parties to the proceeding are the accused and the Crown where the accused has been charged with a crime by the government. In criminal court, the standard of proof is beyond a reasonable doubt. This legal concept requires a higher level of proof than in civil court. Beyond a reasonable doubt means that the accused has to be found guilty. Furthermore, the evidence must confirm that there is no other reasonable explanation for the offence. The case is decided by a judge or jury on the basis of the evidence provided during the proceeding. In criminal proceedings, the Crown has the responsibility to prove their argument. If the accused is found guilty, the judge will order the appropriate penalty which can be imprisonment, fines, and other penalties.

Conditions of Release

Once the accused is arrested for an offence, they may be detained until certain requirements are satisfied. If the matter is scheduled for a bail hearing, the release of the accused is dependent on the court accepting the conditions. The accused may be required to promise, in writing, to appear in court on a future court date and follow the conditions of release until that time. The conditions may relate to no-contact with partner or children, keeping a certain distance from partner or children, and limited to no access to their children, if any.

Conflicting Orders

Criminal Courts and Family Courts are separate legal entities. The Courts belong to different branches of law; therefore, there is no conjunction in terms of the given orders.

Conflicting orders arises when a partner obtains two separate orders from both courts – a Family Court order might conflict with a Criminal Court order or vice versa. One example would be where the Family Court order provides access to children whereas the Criminal Court order might state no contact. In other times, the Family Court might provide a No-contact order and the Criminal Court order does not prohibit contact of partner or children. Conflicting orders cause uncertainty and ambiguity in terms of what actions are prohibited versus allowed by the accused. Consequently, a partner might be breaking court orders as they may be unaware of the conflict the orders cause.

It is important to note that there is a possibility of a partner using the conflicting orders to their benefit. For example, they might contact the partner and arrange access or to continue to abuse the partner. As court orders can frequently undergo changes and to avoid conflicting orders, it is imperative for both parties to ensure that their lawyers, and the Courts are aware of the most recent orders from either Court.

Getting Help

The Victim Witness Assistance Program (VWAP) provides assistance to victims or witnesses of a crime. The program ensures the accessibility of help in the following areas:

• Explaining the process and procedures of the criminal justice system
• Preparing for appearances in court
• Referring the victim to community services for further support.
• Helping the victim understand and complete a Victim Impact Statement.^[5]

Furthermore, the Ontario government has a “Victim Services Directory” that helps individuals to locate victim programs and services in the community. The Directory allows victims to decide what services they may require and assists in connecting the victims with organizations.^[6]