Conditions are imposed on the accused spouse upon release to protect a victim of spousal abuse. The spouse may, for example, be prohibited “from communicating, directly or indirectly” with the victim, “from being less than one hundred metres from the domicile of the victim”, “from possessing any firearms”, etc.

To learn more about this subject in general, you can consult the sections devoted to conditional release in Côtécour.

Here are some examples of release conditions designed to also protect the children involved:

“Not to communicate, directly or indirectly, with Julie (the accused’s spouse) and the members of her family” or “Not to communicate, directly or indirectly, with Julie and the children Peter and Jonathan” or even “Not to be in the presence of Julie and the children Peter and Jonathan.”

Protecting the children justifies this kind of condition. It is very important that the victim specifically describe in her statement the spouse’s relationship to her, as well as to the children, so that the court can effectively measure the true danger the accused poses.

Depending on the situation, it is possible to establish conditions of release that allow the accused parent to visit or contact the children, all while ensuring their safety.

For example, the conditions of release may only allow the accused to have access to the children at the home of a family member or friend. This person’s prior consent is necessary before this condition will be granted. Some organizations also offer to arrange and supervise parent-child meetings.

If the spouses are involved in family law proceedings, the court dealing with their case can settle the issues regarding the parent-child relationship. The court will listen to the spouses and assess the actual danger posed by the accused parent before making any decision that might harm relations between parent and child. While the spouses await the results of their family law proceedings, the criminal court can set conditions of release that prohibit any contact with the children and victim “except in accordance with a judgment of the family court”.

Yes. The court can vary or even cancel conditions where justified. A variation is made:

• by motion to a justice of the peace;
  
• at any time if both the Crown and the accused agree, or;
  
• after the preliminary inquiry or on application to the court during trial.

The accused should communicate any changes in the situation (such as a move, change of employment, or reconciliation with the victim) to his lawyer, who will try to modify the release conditions.

The Crown prosecutor or the court, as the case may be, will consult the victim and get consent before deciding to vary the conditions, especially if the victim is affected by the condition (no contact, no communication, security perimeter, etc.). The judge, justice of the peace, or Crown prosecutor are never obliged to agree to vary a condition of release, even if the victim makes the request. They can refuse to change the condition if, for example, the victim consented out of fear, or because of threats or intimidation. The first priority is the victim’s security.

A conditional release will often prohibit the accused from “communicating directly or indirectly” with one or more people named in the promise or recognizance, usually the victim or a witness.

The prohibition on communicating includes communicating directly in person, by telephone, letters or even e-mail.

For example, accused A is released on the condition not to communicate directly or indirectly with victim B. If A calls B to ask about the children, A is committing an offence.

A prohibition on communication also covers indirect communications with the protected individuals.

For example, accused A is released on the condition not to communicate directly or indirectly with victim B. A calls C, victim B’s brother, and asks him to wish B a happy birthday. A is committing an offence.

The accused person’s lawyer can contact the victim. The victim can to talk to the lawyer, but does not have to.

The rules don’t change even if a person protected by the condition, such as the victim, initiates contact: the accused cannot communicate with that person. The accused must refuse, or avoid, any communication with the person mentioned in the conditions in order to avoid committing an offence. In addition, the rules do not change if the accused and the victim are living together again; the accused remains subject to the conditions.

For example, B is accused of threatening A and as a result is prohibited from communicating with A. But A and B have been seeing each other for two weeks even though the criminal file is still pending. One evening, the police stop them in B’s car for a routine check. The police officer asks them to identify themselves, checks their identity papers on his computer and discovers the release condition. B is arrested for breaching a condition of release and the file is forwarded to the Crown prosecutor.

The criminal court can draft the conditions of release so that the spouses may be in contact “in the presence of their respective lawyers during family law proceedings”. It is not recommended that a victim enter mediation if spousal abuse is a factor, though.

The judge can prohibit the accused spouse from going to specific places such as the victim’s residence or even the victim’s workplace. Of course, the victim’s residence is often the accused spouse’s former address. The conditional release can be worded so the accused spouse can go to a specific address “with a police escort to retrieve personal belongings”, or the victim can go to that address with a police escort to retrieve personal belongings. If there is no such condition, the police will sometimes agree to act as an escort provided both spouses agree.