Under the Constitution, the Parliament of Canada has the authority to make laws related to criminal law and determine the rules of criminal procedure. As a result, the Criminal Code applies to all Canadians. Public Prosecution Service of Canada (PPSC) carries out prosecutions of the majority of federal offences, including drug offences, however it is the provinces that prosecute most Criminal Code offences in the provinces. In the territories, PPSC conducts all criminal prosecutions, including those under the Criminal Code.
Federal legislation addressing family violence in Canada
While there is no specific offence of family violence in the Criminal Code, most acts of family violence are crimes in Canada. Relevant criminal offences could include:
Offences related to the use of physical and sexual violence such as:
- assault (causing bodily harm, with a weapon and aggravated assault) (ss. 265-268)
- kidnapping & forcible confinement (s. 279)
- trafficking in persons (ss. 279.01)
- abduction of a young person (ss. 280-283)
- homicide – murder, attempted murder, infanticide and manslaughter (ss. 229-231 and 235)
- sexual assault (causing bodily harm, with a weapon and aggravated sexual assault) (ss. 271-273)
- sexual offences against children and youth (ss. 151, 152, 153, 155 and 170-172)
- child pornography (s. 163.1)
Offences related to the administration of justice such as:
- disobeying order of court (s. 127)
- failure to comply with condition of undertaking (s.145(3)),
- failure to comply with probation order (s. 733.1)
- breach of recognizance (peace bond) (s. 811)
Offences related to some forms of psychological or emotional abuse within the family that involve using words or actions to control, isolate, intimidate or dehumanize someone such as:
- criminal harassment (sometimes called “stalking”) (s. 264)
- uttering threats (s. 264.1)
- making indecent and harassing phone calls (s. 372)
- trespassing at night (s. 177)
- mischief (s. 430)
Offences related to neglect within the family such as:
- failure to provide necessaries of life (s. 215 )
- abandoning child (ss. 218)
- criminal negligence (including negligence causing bodily harm and death) (ss. 219-221)
Offences related to financial abuse within the family such as:
- theft (ss. 322, 328-330, 334)
- theft by person holding power of attorney (s. 331)
- misappropriation of money held under direction (s. 332)
- theft of, forgery of credit card (s. 342)
- extortion (s. 346)
- forgery (s. 366)
- fraud (s.380(1))
The Criminal Code also contains a number of special provisions that serve to protect victims. When charges relating to family violence have been laid, criminal courts have a wide range of powers to release or detain an accused person. They can provide for release conditions such as “no contact” until the trial or appeal (Section 515). Even where no offence has been committed yet, where personal injury or damage is feared, courts can also order peace bonds or recognizances, which require an individual to agree to specific conditions to keep the peace (Section 810).
Special consideration is given to the harm that comes from family violence. Because of the nature of the harm, sentencing provisions of the Criminal Code (Section 718.2) make it an “aggravating factor” for sentencing purposes when the offence involves abuse of a spouse or common law partner, abuse of a person under the age of 18 or abuse of a position of trust or authority. Section 742.1 puts limits on the use of conditional sentences that would allow an offender to serve a sentence in the community.
Provincial/Territorial family violence legislation
Provincial and territorial governments make laws in areas of their own jurisdiction. To date, six provinces (Alberta, Manitoba, Nova Scotia, Prince Edward Island, Newfoundland and Labrador and Saskatchewan) and three territories (Northwest Territories, Yukon and Nunavut) have proclaimed specific legislation on family violence:
- Alberta: Protection Against Family Violence Act
- Manitoba: Domestic Violence and Stalking Act
- New Brunswick: Intimate Partner Violence Intervention Act
- Newfoundland and Labrador: Family Violence Protection Act
- Northwest Territories: Protection Against Family Violence Act
- Nova Scotia: Domestic Violence Intervention Act
- Nunavut: Family Abuse Intervention Act
- Prince Edward Island: Victims of Family Violence Act
- Saskatchewan: Victims of Domestic Violence Act
- Yukon: Family Violence Prevention Act
These civil statutes are designed to complement protections in the Criminal Code. They offer further protection to victims of family violence. Civil measures provided include emergency intervention orders which may grant the right for only the victim to remain in the home and use the family vehicle. They may also restrain the abuser from communicating with or contacting the victim or members of the victim’s family.
Other jurisdictions provide for family violence protection orders under their family law legislation, for example, the Family Law Act in British Columbia.
Provincial/Territorial child protection legislation
While general criminal offences, such as criminal negligence, assault and homicide, are applicable to violent acts against children, there are also a number of child-specific offences in the Criminal Code. These include failure to provide the necessaries of life, child abandonment and an extensive number of child-specific sexual offences. In addition to criminal sanctions, the following provincial and territorial child protection laws provide for state intervention where a child is in need of protection.
- Alberta: Child, Youth and Family Enhancement Act
- British Columbia: Child, Family and Community Service Act
- Manitoba: Child and Family Services Act
- New Brunswick: Family Services Act
- Newfoundland and Labrador: Children and Youth Care and Protection Act
- Northwest Territories: Child and Family Services Act
- Nova Scotia: Children and Family Services Act
- Nunavut: Child and Family Services Act
- Ontario: Child and Family Services Act
- Prince Edward Island: Child Protection Act
- Quebec: Youth Protection Act
- Saskatchewan: Child and Family Services Act
- Yukon: Child and Family Services Act
What happens if you call the police?
If someone has abused you, you should tell the police. All parts of Canada have police and Crown prosecutor and spousal abuse policies to ensure that spousal violence is treated as seriously as stranger violence.
The police might arrest the person if they believe the person has broken the law. The person might have to go to jail for a few hours until the bail hearing or maybe longer depending on what the judge decides.
If you are afraid for your safety, ask the police to notify you before the person is let out of jail. The judge may set rules for the release of the person who abused you. For example, the judge may order that the person is not allowed to contact you.
If you are afraid of being hurt when the person is released from jail, you may want to find a safe place to stay such as with a friend or at a shelter.
In some provinces and territories you may be able to get a non-criminal emergency protection order, such as a court order that tells the person who was abusive that they must not communicate with you. The order might make the person abusing you leave the family home for a period of time. You can ask police or victims services for information on how to go about this. If an emergency protection order is not available, you may be able to get a peace bond.
What happens if the police charge the person who abused you?
If the person who abused you pleads guilty to a criminal offence, the judge will decide on a sentence. The sentence may be a fine or probation. The person who abused you might also have to get counselling. The judge might also order time in jail. In deciding on a sentence, the judge will consider many things. For example, the judge will consider whether this is a first offence and how severe the abuse was.
If you are afraid, tell the Crown prosecutor or your victim services worker. If the person who abused you gets probation, the judge might release them with conditions.
If the person who abused you tells the judge they are not guilty, then there will likely be a trial. It may be several months before the trial starts. You will have to be a witness at the trial, but there are several things the courts can do to make you more comfortable when you appear as a witness. You may be able to speak to the judge from behind a screen or from another room by closed-circuit television so that you do not have to see the person who abused you. You may also be able to have a support person near you while you testify. If the person who abused you does not have a lawyer, the Crown prosecutor can ask the judge to appoint a lawyer so that you do not have to be cross-examined by the person who was abusive.
If the person who abused you is found guilty, the judge will decide on a sentence such as a fine, probation or jail time.