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What is Evidence in Domestic Violence/Assault Cases

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Mariya Protsenko and Daisy Zhang

Neuberger & Partners LLP, Criminal Defence Lawyers

 

In Canada, “domestic violence” is not defined under the Criminal Code.  People accused of domestic violence are typically charged with assault, sexual assault, utter threats, mischief, and criminal harassment.

Domestic violence cases often occur in the context of an intimate relationship between the two people who are usually dating, common law or married.  This includes relationships such as boyfriends and girlfriends, spouses or common-law partners, and other family members. In Canada, there is a zero-tolerance policy for domestic violence. That means that if the complainant calls the police to report a domestic assault, for example, the police are obliged to lay the charge, and the Crown Attorney will proceed with the prosecution. The goal of the policy is to achieve a reduction in the incidence of spousal violence in Canada.

Often clients who come to our firm are surprised they were charged and do not know of the mandatory charge policy and often say “there is no evidence I did anything”.

To help address this, let’s look at what constitutes evidence that can form a prosecution case and be used to possibly convict someone beyond a reasonable doubt in a criminal trial.

911 Recordings:

All 911 phone calls are recorded and can be introduced at the trial.

Photographs:

Any visible injuries of both the complainant and accused are often photographed. Any weapon used during the assault and the images of damaged property at the scene are photographed as well.

If there was no intent to cause physical injury to the complainant, but property was damaged, you may face mischief charges.

Regardless, photographs of alleged injuries, and alleged weapons constitute evidence.

Even if photographs were not taken, an officer who observed alleged injuries and made notes of his or her observations, can testify as to what he or she observed.

Medical Reports:

These are the reports completed by medical professionals such as nurses, doctors, lab technicians and paramedics. The medical reports in sexual assault cases are called sexual assault kits and constitute notes from full body examination of the complainant. If the ambulance was called to the scene, there will be EMS notes created by the paramedics.

Medical records related to attending a doctor or emergency room and injuries are medical records that can be introduced at trial to corroborate the evidence of the complainant, subject to certain evidentiary issues.

Police officers’ Notes:

The notes that were taken by the police officers with details into their investigations can be typed or handwritten. This includes what the officers observed at the scene, what the witnesses, the complainants or the accused said, what rights the accused was given when arrested and many other nuances. Sometimes the officers’ notes are the only insight into the complainant’s statement and in certain cases the contents of the notes can form evidence, including utterances made by any accused when the police are investigating.

It is important to note that if police attend after a 911 call of a domestic assault or other domestic violence, the police usually ask both parties what happened.  Unless the police direct and detain an individual there is no requirement to provide rights to counsel.  Thus, anything said may wind up in a trial as evidence against the accused.

Witness Statements:

Statement of witnesses includes the statements from the complainant, the neighbors, family members, or any other bystanders who heard or saw the alleged domestic violence incident.

The complainant’s statement is the retelling of the events by the complainant. In Canada, most domestic violence occurs without the presence of the third party. Therefore, in many cases the statement of the complainant is the only piece of evidence against the accused. The statement of the complainant is enough to have the accused charged with a domestic violence offence and to have the accused prosecuted by the Crown Attorney. This means that even in cases where the complainant is not telling the truth about the events, the accused has to go through the criminal justice system.

Police may audio or video tape the statement.  They may ask the witness to write down what he/she told them, or they may write it for them and have them sign it afterward.

Oral Evidence at Trial:

This is often the most confusing for clients who have never been involved with a charge before. A complainant can testify at a trial and provide their version of the events. Their in-court testimony is evidence.  Evidence that a trial judge or jury can accept as proof beyond a reasonable doubt.  Again, if there is no other evidence, still the oral evidence at trial of a complainant is evidence and can be sufficient to prove the case.

The focus of a defence in a domestic violence case – whether assault or sexual assault – is to skillfully develop the defence narrative and then cross-examine the complainant to undermine his or her version of events.

In many cases were deem it vital that the person accused, our client, be well prepared to testify and does testify at a trial to provide the judge with the defence version.  When well prepared, this can and often leads to a verdict of not guilty.

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