For many people charged with spousal or domestic assault, one of the most pressing issues is the extreme restrictions placed upon them by conditions of Bail. Most spousal assault charges result in the accused being taken to Court where they are seen by Duty Counsel, the free lawyer available to those who don’t yet have their own lawyer. Duty Counsel will meet, often very briefly, with the person and then leave to discuss the case with the Prosecutor. For the majority of cases, these discussions lead to the Crown proposing a “Consent Release” for the accused.
This Consent Release typically contains conditions which prohibit the accused from attending his or her home, contacting his or her spouse or partner, and may severely restrict access to children. It will sometimes also prohibit alcohol consumption, and require the accused to report to a Bail Supervisor. Most people in custody agree to all the conditions on the Consent Release without understanding that they have the right to argue against them in Court that same day. This happens because most people who are in jail will agree to absolutely anything just to get out.
Many don’t understand that these conditions remain in place until the Charge is finally dealt with.
All of these are at least inconvenient and, in the case of access to children, may be extremely harmful to the family in general and the children in particular. This is especially true when the case begins to drag on for weeks or months.
Amending or deleting bail conditions is possible and in fact done quite regularly. It is important to retain a Criminal Defence Lawyer who defends Spousal Assault cases regularly and who knows how to approach an application to change Bail. Bail Variation Applications in Provincial Court require the consent of the Crown Prosecutor for a Judge to even consider them. This means that Defence Counsel must work with the client to formulate a plan which will satisfy not only the concerns of the Court but also those of the Crown.
When I am retained on a Spousal Assault case, the first issue I address is the Bail Conditions and whether they are workable for the client. In most cases, I am able to work with the Client to find workable Bail Conditions and then put together a plan to convince the Crown to consent to the Application. While this is not always possible, in most cases we are able to arrive at terms of Bail that are the least disruptive, given the circumstances.