UPDATED June 2017: As discussed in an earlier FAQ, dual charging or counter charging of women is one of the direct results of the mandatory charging policy. This is a serious, if unintended, consequence, and rates of dual/counter charging remain high in Ontario.
Both women and their children feel the consequences of dual/counter charging.
The abuser gains even more power and control because he knows his partner is unlikely to call the police again if she gets charged when she does so. He also knows that he can use the charge as a threat to hold over her.
If the woman is in the midst of an immigration or refugee proceeding, the outcome of the criminal case may have a negative impact. Child protection authorities may become involved and, if a custody and access case is underway, her abuser will use the criminal charge as leverage.
When their mothers are inappropriately charged, children are placed at risk of further emotional, psychological, and/or physical harm. They do not receive a clear message about who is responsible for the abuse and that the behaviour of the abuser is wrong.
If child protection authorities become involved and the children are removed from their home, they may experience trauma as a result.
The impacts of dual/counter charging are felt beyond the immediate family. It is difficult to prosecute appropriately when both parties have been charged instead of only one. Charges that should be prosecuted may be withdrawn and the two people may be encouraged to enter into peace bonds. This means the primary aggressor is not held accountable for his actions and the woman is subject to a serious court order when she has done nothing wrong.
It is not uncommon for women to plead guilty just to get the criminal case over with. They may do so on the advice of duty counsel, who assure them they will receive a minimal penalty and likely even a discharge, without taking the time to talk to them about the possible implications of a guilty plea on any custody, restraining order or child protection proceedings in family court.
Preventing dual or counter charging from occurring requires police to conduct a careful analysis of the situation, including a review of the family’s history, in order to identify the “dominant aggressor” so that only the appropriate person is charged.
The police in Ontario define the dominant aggressor as “the individual who has been the principal abuser (not necessarily the person who initiated the violence)”. The police acknowledge that women may engage in strategies for survival during which they sometimes resist the demands of the perpetrator. Sometimes the issue of who is the perpetrator can be clarified by asking which partner is terrified by the other’s behaviour.
Ontario police are expected to use the following factors to determine who the dominant aggressor is:
- Determining who struck first
- The history of violence between the parties. If the woman reasonably feared, based on this history, that she was about to be struck she may have struck first to try to stop the assault on her before it began
- The relative size of the parties
- The apparent strength of the parties
- The seriousness and cause of each party’s injuries
- Past complaints to police, including those where no charges were laid
- Past or present no contact orders from either family or criminal court
- Medical records
- History of previous use of services for women who have been abused
- Each party’s criminal record
- Whether the physical evidence at the scene is consistent with either person’s version of events
- The 911 call
- The demeanour of the parties. For example, which person appears fearful of the other, which is using an aggressive stance
- Each party’s sobriety
- Comments from neighbours and witnesses
- Any signs of power and control being exerted by one person over the other (e.g. use of coercion, threats, intimidation, emotional abuse, minimizing, denying or blaming the woman for what has happened)
- Which person has physical injuries and how they were caused, including a consideration of whether weapons were used or threatened
- The crime scene itself. If there is damage to property, a consideration of what is damaged, which person seems the most upset about it, whose belongings have been destroyed, etc.
When a woman is counter charged, a request can be made on her behalf that the Crown Attorney withdraw the charge. Crown Attorneys prosecute criminal charges that are laid by the police. They have the discretion to withdraw charges if they do not believe that there is a reasonable prospect that the person will be convicted or if they believe that the charge resulted from an inappropriate application of the mandatory charging policy.
A woman with no previous criminal record who is charged with assaulting her partner in the context of domestic violence may be able to receive a legal aid certificate so she can hire a lawyer to represent her. For more information about this, see our blog entry on legal assistance for women involved with criminal court or visit the Legal Aid Ontario website.