If you’ve been arrested for a domestic charge, you’ve likely been told that you have certain conditions that you must follow in the time between the arrest and the resolution of your case. This article aims to be a brief explanation of what your conditions might mean, why they are put in place, and what can be done about them.
Bail conditions
The basic principle is that if a person has been arrested, they are held in police custody, unless the police feel that it would be safe to release that person back into the public. However, when the police release an individual, they are permitted to impose restrictions on that person’s freedom if they feel that those restrictions are necessary to keep the public safe. If the police feel that they are not equipped to make this decision themselves or they do not wish to release a person, that person is brought before a judge as quickly as possible to have their release and the conditions of release determined by the judge.
The principle of bail release is that a person should be released under the least strict conditions that are possible while still ensuring that the public is protected from potential harm. The police or a judge must consider the characteristics of the accused person as well as the nature of the crime they are accused of when determining what these conditions should be.
No-contact orders
Domestic charges are taken very seriously in Canada and as such, it is almost a guarantee that an accused’s bail conditions will include a no-contact order. This order is a requirement that the accused has no contact, communication, or in-person time spent with the complainant (the person who initially complains of an issue to the police and starts a domestic charge being laid). This contact prohibition is comprehensive and includes all forms of contact, meaning in-person, phone, text and internet communication are all prohibited. Even attempting to communicate with the other person through a third-party (asking somebody else to pass a message along) counts as a breach of the order.
A no-contact order is absolute and inflexible. Even if the accused, the complainant, and everyone else in the family agree that they are okay with speaking to each other or living in the same place, this is not permitted until the no-contact order is varied in court. This is obviously restrictive and can prevent an accused person from doing many things that they may need to do to live their day-to-day life and to progress with their legal case. Later in this article, bail variations which may allow exceptions to these orders will be discussed, but before that, we can lay out some additional bail conditions that may affect an accused and where they are able to be.
More specific location restrictions
A no-contact order will obviously generally prevent an accused person from spending time at their own home if that home is where the complainant family member also lives. However, bail conditions can sometimes be more specific, and directly state places where the accused is not allowed to be. This can include the home where the family members live, but may also include places where family members work or attend school, may be broader as to prohibit the accused from spending time in the complainant’s entire neighbourhood, or include any other specific location that a judge thinks is relevant to the case.
Sureties
If the police choose to hold you for bail rather than releasing you on an undertaking, you may need a surety. A surety is somebody who knows the accused who agrees to supervise them while they are on bail and make sure that they don’t breach other conditions. Sureties are commonly friends or family members of the accused that would be able to keep tabs on the accused. Your lawyer will typically help you with selecting a surety, as a judge will evaluate that person to make sure that they take the charges seriously and seem like a person who would diligently make sure that the accused follows the bail conditions. A surety must also pledge a sum of money to the court that represents their promise to help the accused follow the conditions. If the accused breaches the conditions while under watch of the surety, the surety loses their pledge. Finding sureties is a very important part of getting bail for a domestic charge and so we encourage you to discuss potential sureties thoroughly with your lawyer and allow them to help you select one that will be acceptable to a judge.
Other conditions
A few other conditions that are somewhat less common but may still be imposed include curfews, which require that an accused be at a designated address during certain hours; regular check-ins with police; and prohibitions on weapons, alcohol, or drugs. The imposition of these conditions will depend on whether they are relevant to the circumstances of the people involved in the case and whether a judge thinks they are necessary to ensure the cooperation of an accused.
What can be done?
Now that we’ve discussed the nature of bail and what conditions may be imposed on a domestic charge, the next question is: what can be done to change these conditions or lighten them to allow a person to continue living their life without excessive burdens? Usually, if an accused person has lost access to their own home due to bail conditions, regaining access to that home is one of the first things that they wish to seek in legal proceedings. Unfortunately, this can be hard to come by.
Retrieving your belongings from your home
If your no-contact order contains an exception allowing you to attend your residence with a uniformed police officer to retrieve your belongings, you may be permitted to do so for that limited purpose.
The process to reacquire your belongings is as follows: contact the police via their non emergency line to set up a time when they would be able to escort you at the residence (this is sometimes called a “keep the peace” escort). Next, create a list of all of the belongings that you need. On the assigned date and time, police will meet you at the residence and an officer will escort you inside while you collect your belongings. Note that if a family member argues about who owns an item, unless the police officer agrees that the item is clearly yours, they will instruct that you leave it behind. You may then exit the residence with those belongings. While this isn’t much freedom that is allotted to an accused person, it is a system designed so that an accused can continue on with their essential aspects of their life and/or employment while charges are pending.
Changing the no-contact order
In terms of more substantive access to your home and family, a formal bail variation will be required. A bail variation is brought by submitting specific documents to the court which must be approved by the court and the prosecutor. If varying bail requires varying conditions that will affect other people, such as your family members, the prosecutor will generally seek their input before they will agree to the variation.
Often, accused persons wish to have exceptions made to their no-contact orders to allow them to take part in specific things to do with their family or attend at specific places for non-family purposes. Examples include attending an event with your children, such as a graduation or other ceremony, or going to work at a certain location if that location would otherwise be prohibited if the complainant also works there. While it is never a guarantee that these exceptions will be permitted by the court, your lawyer will be willing to pursue these options as far as they can and help you to try and access important opportunities to be with your family. Let your lawyer know what important forms of contact you feel you need with your family during the life of your case and they will do their best to have them discussed and approved with the prosecution.
In conclusion
Ultimately, if you have been removed from your home on a domestic charge, it can be difficult to fully regain access to that residence, due to the court processes prioritizing protection for those who report domestic incidents. However, those with domestic charges ought to seek legal advice, such as the kind offered by Karapancev Law, and a lawyer will be able to provide you with information and potential options that could lead to a lightening of your bail conditions.
