Few legal situations cause more immediate turmoil than a domestic assault charge. In addition to the actual prosecution, one of the most immediate and important questions that comes to mind is whether or not I can go home. There is no single answer, and knowing what to do and how can save you from making a wrong move that could make a bad situation worse.
Why You’re Often Removed From the Home Right Away
Police, when called to a domestic violence incident, are concerned with keeping everyone safe not determining who is to blame. When the police arrest someone, they will normally move the accused from the complainant’s home if they are living there. This is irrespective of who the lease or mortgage is in the name of and irrespective of what actually occurred.
Following arrest, you’ll typically be held for a bail hearing, often within a day. Until that hearing can be resolved, you have no legal way to return to the home, even temporarily to retrieve belongings, even with the consent of the other person!
Bail Conditions Usually Include a No-Contact and No-Go Order
When you appear for bail, you’ll appear before a judge or justice of the peace, who will determine whether you will be released and under what conditions. In domestic violence situations, it is not uncommon for release to be on the condition that it be accompanied by:
- No personal or direct contact with the complainant.
- No attendance in the common house; Withdrawal from the common dwelling.
- No communication with third parties, text, email, or social media.
- Limits to proximity to specific sites such as a work or school site
These are not recommendations these are court mandates. These remain in effect throughout the life of the case, and can last for many months as the case progresses through the system.
But They Want Me Back” Doesn’t Change the Law
This is one of the most common — and most dangerous — misconceptions in domestic assault cases. None of it means that you have the legal right to return if the complainant really wants you home, has forgiven what went on, or if the complainant thinks it was a misunderstanding. The complainant may not avoid or disregard any court order. That is something that can only be done by the court.
Going home at the invitation of the other person, and being later discovered there, is considered a violation of the terms of your release – end of discussion. The charge is not particularly interested in intent and good faith.
What Actually Happens If You Breach
A breach, even for a short time, of a no contact/no go condition, including if the complainant encourages such a breach, may result in:
- Another completely new criminal offence for violating your release.
- Losing one’s bail, or being arrested again
- Difficulty in obtaining bail once more for second bail.Difficulty in obtaining bail once more for second bail.
- A judge who is less likely to be favourable to you if the case goes to trial
Courts carefully monitor compliance. Slipping up, no matter how insignificant it might seem at the time, usually makes the rest of the day or week harder.
Varying Your Bail Conditions: The Legal Way Back
If your situation truly allows you to go back home, it’s a formal route and not an informal arrangement. This usually involves:
An order for a variation of bail. Your lawyer asks to change the conditions of your release. This usually involves the complainant’s written consent, submission to the Crown/ prosecutor, and in some cases an appearance in court.
If consent is refused, a bail review will be held. When the prosecution won’t agree to loosen the conditions, your lawyer can ask a higher court to review the bail terms. It is a more complex hearing, where the judge considers things such as what the complainant has said they want to happen, counselling that has been given, if a supervision plan has been put in place, and the complainant’s experience of the allegations.
Additional safeguards. Sometimes, evidence of relationship counselling, regular reporting to a bail supervisor, a surety to help ensure compliance, or treatment or anger-management programs is required for a variation.
All of these take time, and there is no assurance that any will work but it’s the only way that doesn’t result in a new charge.
Ownership of the Home Doesn’t Matter
One common reason for frustration is to discover that if you own the house, or pay the mortgage, you can’t necessarily get into it. If a no-go condition names that address, you are denied access to it, even if you have legal or financial interest in it. When making a case for a variation, though, it can help your lawyer that you are the owner.
If Children Are Part of the Picture
Parenting needs don’t take precedence over bail conditions either. If you have anyone else in the house, it will need to be explained in detail in your release requirements. If you are expecting to go back home a bit to be part of your kids’ lives, you should raise that with your lawyer maybe with family law counsel, as well as part of your variation request.
The Bottom Line
No matter how good the intent to have a bail condition is, there is no shortcut. The only secure means of returning home is by means of formal variation or review of your release terms. The earlier that you can talk to a criminal defence attorney, the better you will be able to do that process correctly and without a breach that makes it even more difficult to recover from.
This article is intended to provide general information and does not provide a substitute for legal counsel with regard to you and your particular circumstances.
If you need experienced legal guidance regarding your charges or bail conditions, speak with Markham criminal lawyers who can assess your situation and help you understand the next steps available to you. Getting legal advice early can help you avoid an accidental breach and protect your rights throughout the process.
Contact Sukhvir Singh today to discuss your situation and learn how we can help.
