Conjugal violence is a universal problem that can affect anyone regardless of their gender, economic status, ethnicity or religious affiliation.
In international law, there are numerous conventions and treaties on the protection of women against conjugal violence. Also, many countries have enacted legislation protecting women against such abuse. In Canada, conjugal violence is not tolerated. In fact, the Canadian government has criminalized various acts in relationships where conjugal violence is present.
Therefore, regardless of the laws present in your country of origin, once you come to Canada, it is the law of this country that applies to you
As previously mentioned in the section Conjugal Violence there are different types of abuse and a person can be the victim of one or more forms of violence including:
- Physical abuse
- Sexual abuse
- Emotional or psychological abuse
- Financial abuse
- Religious abuse
- Spiritual abuse
Not all forms of abuse are considered crimes according to the Criminal Code of Canada. Nevertheless, if the abuse is not listed as a crime (ex. psychological abuse), this does not mean that there is no conjugal violence present. There are resources that can help you, especially specialized resources in conjugal violence and social workers who will inform you on the ‘‘cycle of violence”.
Physical Abuse
Physical abuse refers to the use of force on a person without his or her consent. It can cause physical pain or injury that may be short-lived or permanent. Some forms of physical abuse include:
- pushing or shoving
- hitting, slapping or kicking,
- pinching or punching,
- strangling,
- wounding with a knife,
- injuring with a firearm,
- throwing objects at someone,
- causing burns,
- holding someone down while someone else assaults them,
- locking someone in a room or tying them up,
- killing someone.
In Canada, all these acts are considered crimes under the Criminal Code. Depending on the circumstances, they may constitute assault (section 265) or homicide (section 222).
Sexual Abuse
According to the Criminal Code, sexual abuse can include touching with a sexual intent, initiating sexual activity without the consent of the other person, continuing sexual contact when asked to stop or forcing a person to engage in unsafe or humiliating acts.
Remember that in Canada a spouse cannot be forced to have sexual relations (section 278).
A person can refuse to engage in a sexual act verbally (by saying no) or through a non verbal sign of objection to the act.
All sexual contact with anyone without their consent is considered a crime in Canada and can be found in the Criminal Code under “Sexual Assault” (section 271).
Emotional or Psychological Abuse
Although most forms of emotional abuse are not considered crimes in Canada, their presence can indicate that the violence might get worse.
Emotional or psychological abuse is when a person through words or actions tries to control, frighten, diminish their self-worth or isolates another person. This form of abuse can include:
- Threatening, name calling or insulting,
- Constant yelling or criticizing,
- Very controlling of the other individual’s actions (ie.: preventing someone from seeing their friends or family)
- Bullying or humiliating,
- Stalking.
Forms of emotional abuse considered crimes in Canada can include:
- Threatening to harm someone or their belongings or threaten to kill someone (section 264.1)
- Criminal harassment (stalking) involves repeatedly contacting a person without their consent or following them (section 264
Financial Abuse
Financial abuse happens when someone uses the money or property of another to control or exploit them. It can also be pressuring someone to sign documents they don’t want to or forcing them to sell their belongings or changing a will.
Therefore, most forms of financial abuse are considered crimes in Canada, including theft (section 322), robbery (section 343) and fraud (section 380).
When a criminal act has been committed, the victim or the police department can press charges against the abuser. It is important to remember that if you decided to press charges, it is nothing to feel guilty about. You were a victim of a crime and by choosing to press charges; you were simply protecting yourself and or your children.
What is the difference between the court procedures in a civil and a criminal case?
If it is a civil case (ie.: divorce or custody):
- Once a civil conflict has arisen, for instance during a divorce procedure, it is suggested you speak with a lawyer who will represent you in court and help you prepare all the documentation you will need. You can also speak to a social worker who will support you emotionally throughout this process.
If it is a criminal case (ie.: conjugal or family violence):
- Once a complaint has been made to the police, it is up to the criminal investigator to decide if your case shall be passed along to the prosecutor. The prosecutor has the power to decide whether to pursue your aggressor.
- If your case does go to trial, you will automatically become the primary witness in this case. However, you will have the choice to decide whether you wish to testify. If you decide to testify, you are obliged to do so in the courthouse, unless you are granted certain accommodations, such as being able to testify by videoconference.
- Once your case has reached this stage, the power to retract your initial complaint is impossible. Once the prosecutor has chosen to pursue your aggressor, the case is completely out of your hands. This is because Canadian society does not tolerate conjugal violence.
Criminal Court Procedure (CHART)
Who does what at court?
- What does the judge do?
- The judge is the person who will take and impose the final decision. Before rendering the judgment, the judge will hear both parties, consider all the facts, and apply the law. Bear in mind that the judge will not evaluate conduct according to moral standards but will rather appreciate its conformity to the law. Nobody at the court, even the judge, is there to determine whether an attitude was wrong or right, but only whether it was illegal or legal.
- What do the crown prosecutor do?
- The crown prosecutor represents the state. This means that they will be sitting on the side of the victim, but they are not representing the victim’s interests. The role of the prosecutor is to make sure that the accused gets convicted, but they also must make sure that the rights of the accused are respected during the trial in conformity with the laws.
- What do the defense lawyer do?
- The defense attorney represents the accused and therefore will try to prove that the accused is innocent. If the judge finds the accused guilty beyond a reasonable doubt, the defense attorney must try to reduce the sentence as much as possible. The term beyond a reasonable doubt describes the degree of certainty that the judge or jury must establish to find you guilty of the offence in question.
- What do the witness do?
- It is the victim of the abuser that usually becomes the primary witness of the prosecutor. The witnesses are called to the stand to relate the events they experienced directly. A witness is neutral and must always tell the truth. Ie.: A witness cannot say that someone told him he heard a man screaming. His testimony must come from his own perspective (he directly heard a man screaming, he saw a man running, etc.).
- What does the security officer of the court do?
- The security officer’s role is to ensure security during the trial. He can prevent unauthorized people from entering the courtroom or intervene if the accused becomes aggressive.
- What does the jury do?
- The jury is composed of citizens randomly chosen from the population (Canadian citizens) to ensure that the decision taken reflects societal values. They are present during the whole trial, and after hearing both parties, they will decide if the accused is guilty or innocent. If the accused is found guilty, the judge will then decide the sentence.” The jury will only be there in criminal cases. If the accused is found guilty, the judge will establish the appropriate sentence.
- What does the accused do?
- The accused is present during the whole trial. They have the right to remain silent and testifying is therefore not mandatory for them. However, they can decide to testify.
What is the importance of testifying?
- If you have been summoned (received a subpoena) by the court, testifying becomes mandatory. However, if you have not received a subpoena, you could choose whether you want to testify.
- It is important to remember that testifying in court is a way for you to empower yourself. It has a positive impact on the victim’s confidence and self-esteem. Also, it is a way for you to regain some of the power that your aggressor took away from you and it shows them that what they did was NOT right!
What is important to keep in mind while testifying?
When you decide to testify, you’ll take an oath and swear to tell the truth. If you lie, you could be charged with perjury, a criminal offence punishable by imprisonment.
- What happens if you are asked a question that you do not remember the answer to?
- First off, if this happens you have nothing to feel nervous about. Just tell the judge that you do not remember the answer to that question and if the lawyer could please pass to the next one.
- What happens if you are asked an embarrassing question?
- Remember that no one in the courtroom is there to judge or embarrass you. By answering embarrassing questions, you allow the judge to have a more detailed picture of what happened to you so that they can better assess the situation to render a judgement.
- What happens if you are asked a question you do not understand?
- Feel free to ask the lawyer to repeat or explain the question. Remember that there is no shame in not understanding a question, especially when you are not familiar with the legal terms.
- What happens if you are asked multiple questions at a time?
- You can always ask the lawyer to break down the question into shorter questions that you will answer individually. It is important to take your time before answering the questions and to be as precise as possible.
What happens when you are done testifying?
- After you are done testifying, the procedures will go on until the end of the trial. After the trial, the judge will render judgement keeping in mind everything they will have heard during the trial from both parties. Testifying is therefore very important to get the chance to express your point of view. It is also an empowering experience during which you personally get the opportunity to show how unacceptable your aggressor’s actions were.