By: Hanieh Azimi
Let’s assume a scenario in which there is a dispute between a husband and a wife. The dispute results in an emergency telephone call to the police. The wife relays to the 911 operator that she has been assaulted by her husband. In response to the 911 call, the police are dispatched to the residence to investigate the wife’s complaint. If, based on the information gathered, the police believe that it is reasonable and probable that the husband did assault the wife; the husband will be arrested, charged with assault, and taken into police custody. It is important to note that the police are not functioning as judges. The police are not supposed to speak to the wife and the husband for the purposes of deciding who they believe, nor are they to make a determination of guilt or innocence. The police are duty-bound to lay a charge and will lay such charges even in the absence of physical injuries.
The husband in this scenario can be charged based on the statement provided to the police by the wife, with no other evidence to corroborate her account. Upon being charged, the husband will be taken into custody at the police headquarters where a number of outcomes are possible. It is possible that he may be released directly from the police station. In this situation, he will be given a document called a “promise to appear”.
The promise to appear will have a future court date and conditions that he is required to follow which he will be asked to sign upon his release. By signing that paper, the husband is promising to appear in court, on that date, and to abide by any other conditions stipulated. One of the conditions will be a non-association clause, which stipulates that the husband is not to contact the wife directly or indirectly under any circumstances. The consequences of this clause are that the husband will be unable to return to the home, will not able to contact the wife, and will not even be permitted to send a message to his wife through a friend or a family member. Should the husband not be directly released from the police station, he will remain in custody and be taken to court. Upon appearing before a Justice of the Peace, the husband may be granted bail and subsequently released from custody.
The Justice of the Peace will determine whether he should be released with or without a surety, and the conditions, often more stringent, which should be imposed. A surety is a friend or family member who agrees to supervise the husband while he is released on bail. In order to be released the husband will again be required to sign a document called a Recognizance of Bail, promising to attend his next court date and follow the conditions that have been mandated by the Court which are outlined on the release paper.
Until the case is concluded before the Court, the husband will remain bound by the conditions of his release. Should he not abide by any one of those conditions, he will be arrested for a new offence and re-incarcerated. Upon his release, the husband will wait to attend the first court date. Should he decide to retain a lawyer, the lawyer will attend the first appearance court on the husband’s behalf.
The lawyer will then obtain disclosure, which consists of any records or reports that have been made regarding the allegations relating to the charges. The husband will review this disclosure with his lawyer, receive the lawyer’s opinion and advice, and provide instructions to the lawyer as to how to proceed. Should the husband accept the allegations made by the wife, he can instruct his lawyer to set the case before a judge for resolution or a guilty plea. In the alternative, if the husband wishes to dispute the allegations that he has assaulted his wife, he can instruct his lawyer to set the matter down for trial.
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