Court Opines on Impact of Criminal Bail Conditions on Families
In a recent criminal case called R. v. Khinda the court urged that, in cases of spousal violence and domestic assault, judges who set bail conditions should be sensitive to the overall impact that they may have on the economic and emotional wellbeing of the other spouse, any children, and the family dynamic as a whole.
The background facts involved spouses whose relationship had deteriorated. The wife had called the police over a number of incidents of violence by the husband, typically following an argument instigated by his accusations that she had a boyfriend. On two occasions, he slapped her in the face; in one case he also bit her on the right shoulder and left hand. The wife also called 911 during an incident when the husband wielded a kitchen knife and threatened to kill her.
He was charged will several offences, including assault with a weapon and threatening. He was subsequently arrested and then released on a promise to appear, and an undertaking requiring him to: 1) not to communicate with his wife, and 2) not to attend at the family home. This necessitated his moving out.
However, a month later he and the wife were seen (willingly) together at a shopping mall for about two hours, which was confirmed via security cameras. The husband was arrested and charged with violation of his bail, which included a $5,000 surety release and further orders not to contact the wife or attend the home.
In a later bid to have the court amend the conditions of his bail, the wife filed materials in which she attempted to downplay the seriousness of the allegations, and retracted some of them outright. She said she relied on her husband for emotional and financial support, and did not want to be a witness against him. She wanted him back at home as soon as possible, and was no longer afraid of him. Then, at the actual hearing before the court, she formally recanted all the allegations.
In considering whether to vary the conditions of the husband’s bail as requested, the court began with these words:
The concatenation of events in this case is all too familiar. The pattern is a well-worn one: the allegation of an assault or threatening offence, the consequent bail order banishing the accused from the home and prohibiting contact, the ensuing hardship to the complainant [wife], and then the recantation. This is a scenario acted out in domestic cases with alarming regularity. [The wife] said what many complainants in domestic assault cases say. If she had known that her complaint would put all this in motion, she would never have made it.
The court continued:
The plight of complainants in these type of cases is a sympathetic one. They are in a vulnerable position. It could be said that they are between a rock and a hard place. There is powerful financial and emotional pressure brought to bear on them as a result of the court ordered separation. Generally speaking, there is a strong incentive to reconcile with the accused.
With that said, the court noted that while the repercussions of the bail order were impacting both the wife and the accused husband in this case, in these spousal assault scenarios there is a “countervailing public interest in ensuring that the complainant is protected from harm”. Moreover – and this was the noteworthy part from a Family Law context – the court indicated that “damage wrought to the family unit, including children, cannot be ignored”.
The court quoted at length from an older decision in a case called Shaw v. Shaw:
… Spouses of every walk of life and often with completely unblemished prior character are routinely detained for a formal bail hearing for such assaults. Invariably, the defendant (not yet convicted) is excluded from his or her home and prevented from exercising custody of or access to the defendant’s children without any consideration of the factors that this court must apply by law before determining incidents of custody or access. This is not for one moment to diminish the impact of spousal abuse on family members and children in Canada. Spousal assaults are by nature serious and there are very sound policy reasons to lay such charges and have them proceed through the judicial system to ultimate resolution if not diverted. I observe, however, that the damage of which I speak is not from the laying of the charge – this will happen in any event, regardless of the manner in which the defendant is brought before the court. The way that the criminal justice system approaches the commencement of these matters, however, often wreaks family law havoc with the family unit of the defendant and the complainant, and in particular the children of those parties. Family courts decide custody and access issues on the basis of statute and case law defining the best interests of the children. The criminal justice system pays no attention to such interests because it is not geared up to do so ….
The court lamented that in these types of cases, where the conditions of bail imposed on an accused spouse routinely include banishment from the home with no allowance for the court to exercise its discretion, this was tantamount to an “unthinking blanket policy”. The court urged that criminal courts must instead exercise discretion in making these decisions in situations of domestic violence, while also cautioning that the discretion must be “attune[d] to the seriousness of the contours of the problem, a serious problem by any estimation. The safety of the complainant must be paramount.”
With that said, on the particular facts of the case involving this husband and wife, the court decided that it would be imprudent to relax the no-contact conditions, or rescind the husband’s banishment from the home. The court said:
Quite often, despite the parties expressed desire to reconcile, judicial paternalism is necessary. The complainant may not be able to fully appreciate the dangers ahead. Judicial experience plays an invaluable function in this context. Bail restrictions or even pre-trial detention may well be necessary to ensure that a complainant is adequately protected.
For the full text of the decision, see
R v. Khinda, 2020 ONSC 7275
Shaw v. Shaw, 2008 ONCJ 120,  O.J. No. 1111 (Ont. C.J.)