Law enforcement in Canada

There are three public-sector police forces in Canada that are associated with and commissioned to the three levels of government: municipal, provincial and federal. In addition, many First Nations reserves have their own police forces established through agreements between the governing native band, province and the federal government.

The provinces of Ontario, Quebec and Newfoundland and Labrador maintain their own provincial police forces — the Ontario Provincial Police (OPP),^[116] Sûreté du Québec^[117] and Royal Newfoundland Constabulary,^[118] respectively. Smaller municipalities often contract police services from the provincial policing authority, while larger urban areas maintain their own forces.

Seven of Canada's provinces and all three territories, in turn, contract out their provincial/territorial law enforcement responsibilities to the RCMP (popularly known in English-speaking areas as the Mounties),^[119] the national police force, which is commissioned to the federal level of government. The RCMP also serves as the local police in all areas outside of Ontario and Quebec that do not have an established local police force, mostly in rural areas. Thus, the RCMP is the only police force of any kind in some areas of the country.

There is no uniform domestic violence policy throughout Canada for police or Crown prosecutors, each province or territory, or even each police department, has its own policies. However, some policies and other resources have been developed at the federal level or through cooperation between the federal, provincial and territorial governments^[120] or at the federal/interjurisdictional level.^[121] In view of the lack of standardization, the content and implementation of policies and procedures for police and Crown prosecutors differ significantly from one jurisdiction to another.^[122]

Because of the complexities in investigating domestic violence files, many jurisdictions have introduced specialized units dedicated to handling domestic violence offenders. All police and RCMP officers receive basic training in investigating domestic offense files but there are also specialized police units made up of specially trained police officers and supervisors and, sometimes, civilian personnel tasked specifically with victim support services and trained in how to effectively and reliably conduct risk assessments in domestic violence incidents.^[123]

In matters of domestic disputes, Canadian police officers are often the first responders and the only responder in domestic violence incidences in rural and remote communities.

Typical process for engaging police across Canada

• A victim or any individual witnessing domestic violence may call the police by dialing 911. The 911 dispatcher will engage the police officers on general patrol duty who will respond to the initial call at the victim's location. They will physically attend the scene and intervene as needed, assess the safety of everyone involved, attend to the welfare of the victim, interview the victim and witnesses and take statements. The police officers are required to conduct a complete investigation and collect all available evidence from all sources.
• Police departments will generally collaborate with domestic violence support groups and engage with victims and advise them of, and direct them to, available victim services and other supporting agencies (such as shelters), at the time of their intervention and/or afterward.^[124] Additionally, if children are present at the scene or have been exposed to intimate-partner violence, police officers will usually contact youth protection services for assistance.
• If a criminal offense has taken place and there are sufficient grounds for arrest, the police will arrest the accused. The accused may be arrested even if the victim does not want this to happen. The accused will be removed from the scene and will be taken to the local police detachment for processing. The accused has the right to contact legal counsel and provide a voluntary statement (statement cannot be compelled). Some police departments use video recordings to document their interviews with the victim and offender for evidentiary purposes.
• Following the arrest, the accused may be remanded in custody or released with conditions such as peace bonds, no contact or noncommunication orders, nonattendance (for example, at residence, schools and place of employment), a requirement for the offender to attend counseling, communicate any change of address, firearms and drug or alcohol prohibitions. Some jurisdictions require that the victim be advised of the decision to release an offender from custody and of any applicable conditions. Generally, peace bonds are not be used in place of charges where the evidence warrants criminal charges.
• In some police departments, additional steps might be required for calls relating to domestic violence, such as the unit supervisor may be required to be present at the scene, the responding officer's report may be reviewed by the unit supervisor and then the report may be handed over to an investigator for review, completion of a risk assessment of the situation and/or the offender and a more comprehensive investigation. Similarly, police training on domestic violence greatly differentiates from province to province and among police departments; some offer compulsory robust training while in other jurisdictions, police officers may only have basic rudimentary preservice (i.e., police academy) training on such matters.
• Following the intervention, where there are no reasonable grounds to believe that a criminal offense has been committed, but police nonetheless believe that the victim's safety may be at risk, police may consider the availability of other responses, including civil protection orders under provincial and territorial legislation on domestic violence, where applicable, and orders under Section 810 of the Criminal Code.
• If there are reasonable and probable grounds to believe that a criminal offense has been committed, the police officer will recommend criminal charges regardless of the wishes of the victim.^[125] In British Columbia and Quebec, the decision to charge is made by the Crown. In New Brunswick, the decision to lay charges is made by police after receiving advice from the Crown. In these provinces, the Crown must also consider whether it is in the public interest to charge.
• Where charges are laid, an appearance notice will be sent to the offender (now an accused), stating where and when to attend court or if the accused cannot be found, an arrest warrant may be issued against them.
• Once charges have been laid, a central part of the police officer's job:

[…]is focused on maintaining the victim's involvement in the file and encouraging her to proceed with any charge. Although at this point the victim's desire to have their partner charged or not has little direct influence on the likelihood that [the] Crown will proceed, a victim who is unsupportive of moving forward with charges increases the chances that [the] Crown will determine that the likelihood of conviction is low because the victim may not attend court and provide evidence.^[126]

• The responding police officer and investigator, if any, will also be involved in the ensuing court hearing relating to the domestic violence incident as material witnesses.

The Crown prosecuting attorney lays the criminal charges. Law firms may become involved in domestic violence cases in one of three ways: they represent the offender/accused; they represent the victim; or they represent the children involved in such domestic dispute matter.

At the time of the arrest, the offender/accused has the right to remain silent and the right to receive legal counsel from an attorney. A law firm could become involved at this stage if called upon by the offender/accused for legal advice. Thereafter, if mandated by the offender/accused, the law firm will continue to represent the offender/accused during the criminal or civil court proceedings.

Law firms can also be mandated to provide legal advice and/or represent the victim or the concerned children in civil or family law proceedings.

Of note, victim support organizations cannot provide legal advice to victims. In general, only a certified lawyer may give legal advice.^[127]

Victim support services programs and organizations

All Canadian provinces and territories offer domestic violence support services and/or victim services, through either government-run programs or private specialized organizations.^[128]

Please see Section 5.2.1. 

Yes, proof beyond a reasonable doubt is required in order to convict an accused person of a criminal offense, such as assault or sexual assault in a criminal court.^[130]

Yes. Affirmative defenses may be available, including the following:

• Automatism is a form of impaired consciousness, where an individual is capable of action but has no voluntary control over the action.^[131] There are two kinds of automatism. First, there is "insane" or "mental disorder" automatism, which is an involuntary action that results from mental illness. This type of automatism falls within the defense of mental disorder and leads to a verdict of "not criminally responsible on account of mental disorder." Second, there is "noninsane" or "nonmental disorder" automatism, which does not stem from mental illness. If an accused can prove noninsane automatism, they should be acquitted. If the automatism is the result of voluntary intoxication (i.e., alcohol or drugs), the defense of intoxication, rather than automatism, would apply, although courts have recognized that extreme intoxication may result in a state similar to automatism.
  

  If an accused claims automatism, they must prove, on a balance of probabilities (i.e., more likely than not), that they acted involuntary at the relevant time. The court will expect the accused to provide psychiatric or psychological evidence to confirm the involuntariness. The court will also consider all of the available evidence to determine if the accused proved involuntariness.

• Mistake of law (also referred to as "color of right" because the accused mistakenly believes that they have the lawful right to act in a particular way) may be available as a defense if the mistake is objectively reasonable and negates the accused's mens rea (i.e., the mental element of the offense).^[132]

  Similarly, mistake of fact may be available as a defense if the accused has a reasonable and honest belief in a state of facts that, if true, would justify or excuse the conduct.^[133]

• Under Section 17 of the Criminal Code, the defense of duress applies if a person is compelled to commit a crime by threats of immediate death or bodily harm, and the threats come from a person who is present when the crime is committed. However, the defense only applies if the main person carrying out the crime (i.e., the "principal") believes the threats will be carried out and is not part of a conspiracy or association that led to them being compelled by threats. In other words, the accused must not put themselves in a position where they are likely to receive such threats.

  In addition, there must be "no safe avenue of escape" for the accused, from the perspective of a reasonable person in similar personal circumstances to the accused. There must be a time connection between the crime and the threatener's presence, in the sense that the threatener must be able to carry out their threat immediately if the accused refuses to commit the crime. Finally, there must be proportionality between the harm avoided (i.e., the harm threatened) and the harm inflicted (i.e., the harm resulting from the crime), such that the harm avoided must be comparable to or clearly greater than the harm inflicted.^[134]

  The Criminal Code defense of duress does not apply to the following crimes: high treason, treason, murder, piracy, attempted murder, sexual assault, sexual assault with a weapon, threats to a third party or causing bodily harm, aggravated sexual assault, forcible abduction, hostage taking, robbery, assault with a weapon or causing bodily harm, aggravated assault, unlawfully causing bodily harm, arson or the abduction and detention of young persons.

  If the accused is not the "principal" but is charged as a party to a crime, they cannot rely on the Criminal Code defense, but may be able to rely on the common law defense of duress (which may also be available to principals who cannot rely on the Criminal Code defense). The common law defense, like the Criminal Code defense, requires an explicit or implicit threat of present or future bodily harm against the accused or a third party, which the accused reasonably believes will be carried out. Also like the Criminal Code defense, the common law defense of duress only applies if there is no safe avenue of escape or conspiracy involving the accused, and there is both a close time connection between the crime and the threatener's presence, and also proportionality between the threat and crime.^[135] The exclusions to the Criminal Code defense do not apply automatically to the common law defense, and it is unclear if any exclusions exist.^[136]

  To rely on the defense of duress, the accused must raise the defense and some evidence to make it a live issue. Once the accused has done so, the Crown must show, beyond a reasonable doubt, that the accused did not act under duress.^[137]

• The defense of necessity is closely related to duress. The accused must establish that they were in clear and imminent danger, that no reasonable and lawful alternative existed, and that the harm inflicted by the crime was acceptable in proportion to the harm avoided.^[138] In considering whether the defense should apply, the applicable test for the first two factors is what a reasonable person would have done if they had a similar situation and characteristics as the accused. Proportionality must be measured on an objective standard, i.e., whether the harms inflicted and avoided were in fact proportionate, regardless of what the accused believed.

  To rely on the defense of necessity, the accused must raise the defense and some evidence to make it a live issue. Once the accused has done so, the Crown must show, beyond a reasonable doubt, that the accused did not act out of necessity.^[139]

• Provocation may reduce a proven charge of murder to manslaughter. Under Section 232 of the Criminal Code, the defense is available if the accused acted "in the heat of passion," in response to conduct from the victim that would deprive an ordinary person of their self-control, but only if the accused acted before there was time for their passion to cool. The "ordinary person" analysis must be contextualized to take into account the accused's relevant circumstances and characteristics, but it is still an objective standard. The question of whether the accused was actually provoked (i.e., deprived of their self-control by being caught off guard) and acted before there was time for their passion to cool, is a subjective analysis, which is focused on what actually occurred in the accused's mind.^[140]

  Provocation does not apply if the victim was doing anything that they had a legal right to do, or if the accused incited the victim in order to provide the accused with an excuse to cause death or bodily harm. Under the Criminal Code, the victim's conduct must amount to an indictable offense punishable by five or more years of imprisonment before it will be considered "provocation," but some courts have found this requirement to be unconstitutional. While Section 232 of the Criminal Code applies only to murder, evidence of provocation may be relevant to determining if the accused had the necessary intent (i.e., the mental element) for other offenses.

  To rely on the defense of provocation, the accused must raise the defense and some evidence to make it a live issue. Once the accused has done so, the Crown must show, beyond a reasonable doubt, that the accused was not provoked.^[141]

• In certain cases, intoxication may be a defense to some offenses. For the purpose of this defense, there is a difference between offenses requiring "general intent" (i.e., the minimal intention to perform the prohibited act, with no further ulterior purpose) and offenses requiring "specific intent" (i.e., a heightened mental element that goes beyond the performance of the prohibited act). Crimes like sexual assault and manslaughter require general intent, while crimes such as murder and robbery require specific intent.^[142]
• If the intoxication is involuntary, then intoxication may be a complete defense because of a lack of actus reus (i.e., the physical element of a crime). Intoxication is not involuntary if the accused saw or could have foreseen that the substances they voluntary took might result in intoxication.^[143]

If the intoxication is self-induced, the court will consider the level of intoxication. Mild  intoxication, leading to relaxed inhibitions, is not generally a defense. Advanced  intoxication may be a defesce if it prevents the accused from forming the complex intent required for a specific intent offense, because they cannot foresee the consequences of their actions. The accused may still be convicted of any related offense that only requires a general intent. Extreme  intoxication, akin to automatism, is a rare and complete defense. Extreme intoxication may be a defense to general intent offenses if the accused cannot form the minimal intent required.^[144]

Under Section 33.1 of the Criminal Code, the defense of intoxication (even extreme intoxication) is not available for crimes that involve an element of assault or any other interference or threat of interference with another person's bodily integrity, if the intoxication is self-induced. Some courts, including the Ontario Court of Appeal and the Court of Queen's Bench in Alberta, have found this restriction to be unconstitutional.

To rely on the defense of intoxication, other than extreme intoxication, the accused must raise the defense and some evidence to make it a live issue. Once the accused has done so, the Crown must show, beyond a reasonable doubt, that the accused was not intoxicated.^[145] To rely on the defense of extreme intoxication, the accused must prove the defense on a balance of probabilities.^[146]

Yes. Under Section 140 of the Criminal Code, a person commits the offense of public mischief if, with an intent to mislead, the person causes the police to start or continue an investigation by any of the following:

• making a false statement that accuses some other person of having committed an offense
• causing, or attempting to cause, another person to be suspected of having committed an offense that the other person has not committed, or to divert suspicion from the person reporting the offense
• reporting that an offense has been committed when it has not been committed
• reporting or otherwise publicizing that some person has died when that person has not died

Voluntary consent is required for each sexual act in order for it not to be an act of sexual assault; consent must be expressed affirmatively either with words or by conduct.^[149] Subject to a few exceptions, the age of consent in Canada in 16 years old. Importantly, there is no such thing as "implied consent" to sexual activity in Canada. This means that a defendant cannot rely on prior consent as proof that the complainant consented to the sexual act in question.^[150] This also means that consent cannot be given for a sexual act in advance of the act itself; it must be expressly and voluntarily given during the time that it occurred. A complainant, therefore, could not have legally given consent to an act performed on them when they are unconscious, for example, even if consent had been expressly given immediately before falling unconscious.^[151]

The Criminal Code lists additional circumstances where consent cannot be obtained, and in doing so, it safeguards the requirement that consent be truly voluntary.^[152] For example, consent cannot be given on behalf of a complainant, nor can it be given under threat or induction by a person in a position of trust, power, or authority over the complainant.

The courts have also recognized that a lack of resistance or objection does not necessarily suggest that consent has been given; rather, consent must be expressed orally or by affirmative conduct.^[153] There may be several scenarios that would lead a complainant not to openly object to an assault, for example, the application of force or harm, or threat thereof, on the complainant or someone else (like a family member), may be reason enough to not resist. In these cases, consent would not have been freely given.

If a defendant truly believed at the time of the alleged sexual assault that the complainant had consented to each sexual act in question, this may lead to a successful defense, but only if the accused took reasonable steps to ascertain the complainant's consent at the time of the act.^[154] Given the principles listed here, a defendant cannot reference prior consent or behavior as proof of an honest mistaken belief of consent.

Self-defense

Self-defense can be valid defense, depending on the circumstances. Under Section 34 of the Criminal Code, a person is not guilty of an offense if:

• they believe on reasonable grounds that force is being used against them or another person or that a threat of force is being made against them or another person
• the act that constitutes the offense is committed for the purpose of defending or protecting themselves or the other person from that use or threat of force
• the act committed is reasonable in the circumstances

The defense does not apply if the accused is responding to force that is used or threatened by a person for the purpose of doing something that the person is required or authorized to do to administer or enforce the law, unless the accused reasonably believes that the person is acting unlawfully.

Insanity

The Criminal Code and the courts recognize that there are circumstances when an accused may have suffered from a mental disorder, and, therefore, may not be held criminally responsible for an offense (such as assault). Section 16 of the Criminal Code establishes this concept, whereby an accused would not be found criminally responsible if the mental disorder rendered him or her incapable of appreciating the nature and quality of the offense, or of knowing that it was wrong.^[156] If a judge or jury decides that an accused is "not criminally responsible on account of mental disorder," it means that the accused is guilty of the offense but might not be sentenced according to normal procedure. For example, instead of sending the convicted abuser to prison, the court might send him or her to a treatment facility.

Any party can allege that the accused had a mental disorder of this kind and consequence, and will then bear the burden of proving it on a balance of probabilities.^[157] In order to reach this determination, it must first be established that a mental disorder or condition actually existed at the time of the act, and that the incapacity was associated with that condition.^[158] Examples of a condition that may lead to such incapacity include schizophrenia, and severe forms of bipolar disorder or depression.^[159]

Every witness must tell the truth. A witness who is competent and is 14 years old or older will be required to swear an oath or affirm that the evidence they provide "shall be the truth, the whole truth and nothing but the truth."^[161] A witness who is younger than 14 years old, or who is deemed to lack the appropriate mental capacity, will be asked to promise that they are telling the truth.^[162]

The only person who may abstain from testifying in a criminal matter is the accused in the trial itself. No other capable and competent person can abstain from testifying in a criminal case. If the court requests attendance of a witness, or issues a subpoena, the witness in question must go to court as instructed. If someone fails to come to court once requested, the court will have the discretion to commit that person to prison for a maximum of eight days.^[163]

The requirement to testify also applies to the spouse of the accused.^[164] However, while testifying, not every question will necessarily have to be answered. If a spouse of the accused is called on to testify, they will be allowed to decline disclosing any communication made to them by the accused during the course of their marriage.^[165]

In the event that a child (under the age of 18) is called on to testify, the court might consider admitting video-recorded statements as part of their evidence;^[166] that said, child witnesses must still be available for cross examination if requested by the defense. According to the Supreme Court of Canada, this accommodation serves two main purposes, the first being to provide an environment where the child will likely reach their best recollection, and the second reason being to avoid any infliction of further injury that the child might be exposed to in court proceedings.^[167] Much like the case of any victim of domestic violence, compelling a child to relive their trauma through repeated recounting of events may lead to detrimental mental health impacts.

Child victims are more susceptible to influence, which is why the prosecution may request complete prohibition on any communication between the accused and the child witness for the duration of the criminal trial.^[168] The issuance of a peace bond might accompany this request. However, if a case of domestic violence does not involve the child as a victim (and if there is no reasonable fear or threat of harm against the child), such a prohibition might impair the child's relationship with their parents, which too might have negative consequences. In this circumstance, contact between the accused parent and the child may be allowed only when supervised by a local child protection agency.

As described in Section 3, the Criminal Code treats offenses against a family member as an aggravating factor that could lead to more severe sentencing. This principle would readily apply to child victims.

Charges of a "domestic nature" are considered an aggravating factor on sentencing under Section 718.2 of the Criminal Code. The following may apply:

• It depends on the nature of the assault, such as sexual assault or an assault with a weapon.
• The sentence could be an absolute discharge or could be up to 10 years of jail time if the assault involved a weapon or caused bodily harm.
• The sentence imposed also depends on whether the Crown decides to proceed by way of summary conviction or indictment.
• Summary convictions are usually reserved for more minor assault cases.
• Assault with a weapon or causing bodily harm (indictable offense and liable to imprisonment for a term of no more than 10 years or is guilty of an offense punishable on summary conviction who, in committing an assault)

There is no specific offense of family violence in the Criminal Code, however, most acts of family violence are crimes in Canada.^[172] Relevant criminal offenses include the following:

Offenses related to the use of physical and sexual violence such as:

• assault (causing bodily harm, with a weapon and aggravated assault)
  (Sections 265-268)
• kidnapping and forcible confinement (Section 279)
• trafficking in persons (Section 279.01)
• abduction of a young person (Section 280-283)
• homicide — murder, attempted murder, infanticide and manslaughter (Sections 229-231 and 235)
• sexual assault (causing bodily harm, with a weapon and aggravated sexual assault) (Sections 271-273)
• sexual offenses against children and youth (Sections 151, 152, 153, 155 and
  170-172)
• child pornography (Section 163.1)^[173]

Offenses related to the administration of justice such as:

• disobeying order of court (Section 127)
• failure to comply with condition of undertaking (Sections 145(3))
• failure to comply with probation order (Section 733.1)
• breach of recognizance (peace bond) (Sections 811)

Offenses 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 (Sections 264)
• uttering threats (Section 264.1)
• making indecent and harassing phone calls (Section 372)
• trespassing at night (Section 177)
• mischief (Section 430)

Offenses related to neglect within the family such as:

• failure to provide necessaries of life (Sections 215)
• abandoning child (Section 218)
• criminal negligence (including negligence causing bodily harm and death) (Sections 219-221)

Offenses related to financial abuse within the family such as:

• theft (Sections 332, 328-330, 334)
• theft by person holding power of attorney (Section 331)
• misappropriation of money held under direction (Section 332)
• theft of, forgery of credit card (Sections 342)
• extortion (Section 346)
• forgery (Section 366)
• fraud (Section 380(1))

Section 127 of the Criminal Court creates the offense of disobeying an order of the court:

127 (1) Everyone who, without lawful excuse, disobeys a lawful order made by a court of justice or by a person or body of persons authorized by any Act to make or give the order, other than an order for the payment of money, is, unless a punishment or other mode of proceeding is expressly provided by law, guilty of:

1. an indictable offense and liable to imprisonment for a term not exceeding two years; or
2. an offense punishable on summary conviction.^[174]

Section 145(3)-(5) of the Criminal Code consider the failure to comply with a variety of orders that require accused persons to appear in court and to abide by certain conditions while they are waiting for their matter to be heard in court.^[175]

An abuser could be subject to others orders such as:

• paying a fine
• paying restitution to cover victim's costs for property loss, damage or personal injury
• probation (not to contact the victim directly, not to come within certain distance, not to own or carry a weapon)

In Canada, if the offender receives a sentence of two years or more, they will be sent to a federal prison. Correctional Service of Canada's (CSC) National Victim Services Program can provide victims of federal offenders with certain information about the offender who harmed them, either by phone or mail. However, victims do not automatically receive such information; it is only provided if a victim asks for it by registering with the CSC to receive ongoing information about the offender.^[177]

If the offender receives a sentence of less than two years, they will be sent to a provincial prison. Most provincial correctional systems do offer victims, through provincial victim services, the possibility of receiving ongoing information about the offender. In most cases, the victim will need to register with the provincial corrections office in order to receive such notifications. The process for receiving such notifications and the information provided to the victim vary from between provinces.^[178]

In addition to notifications from the correctional departments at the time of release from jail, victims may also, depending on existing local policies, receive additional notifications relating to the offender, through the Crown prosecutor, the local police department overseeing the victim's case, a victim assistance organization or a victim services program, during the court proceedings and/or at time of sentencing.^[179] We note, however, that these parallel systems are not fail-proof and may not always be rigorously applied.

Of note, certain provinces have enacted legislation to allow police to warn victims, or potential victims, of domestic violence of someone's violent or abusive past. Indeed, under Saskatchewan's Interpersonal Violence Disclosure Protocol Act^[180] and Alberta's Disclosure to Protect Against Domestic Violence Act,^[181] also known as Clare's Law, residents can ask police to release information on an intimate partner's past violent or abusive behavior, including criminal convictions and a history of police responding to domestic violence complaints. The information can also be disclosed to people identified by police to be at risk.

Clare's Law is named after a similar law in the UK, itself named for Clare Wood, a young woman who was murdered by her ex-boyfriend in the Manchester area in 2009. Her family found out after her death that he had spent six years in prison for holding a woman at knifepoint for 12 hours.

The purpose of the law is to inform people who may not know they are in an intimate relationship with someone who has a history of violence.