INTRODUCTION AND BRIEF DESCRIPTION
A spouse can be charged with an offence against their partner regardless of whether they were living together at the time.
SECTION WORDING
278 A husband or wife may be charged with an offence under section 271, 272 or 273 in respect of his or her spouse, whether or not the spouses were living together at the time the activity that forms the subject-matter of the charge occurred.
EXPLANATION
Section 278 of the Criminal Code of Canada is aimed at protecting spouses from domestic violence. It recognizes that domestic violence can occur even if the alleged perpetrator and victim are no longer living together as spouses. This means that if a spouse commits an offense under sections 271, 272, or 273 of the Criminal Code, they can be charged and brought to justice, even if they are no longer residing in the same household as their spouse. Sections 271, 272, and 273 of the Criminal Code pertain to sexual assault, sexual assault with a weapon, and aggravated sexual assault, respectively. All three sections deal with non-consensual sexual activity involving violence, threats, or harm. The fact that Section 278 allows for the charging of a spouse under these sections is particularly significant, as domestic sexual assault can be a difficult crime to prosecute, especially if the spouses have separated. Section 278 is designed to ensure that domestic violence does not go unpunished, and it serves as a reminder that the law applies to everyone, regardless of their marital status or living arrangements. This section also underscores Canada's commitment to supporting victims of domestic violence by ensuring that those who commit these crimes are held accountable for their actions, regardless of the circumstances. Overall, Section 278 plays an important role in protecting vulnerable individuals and upholding Canadian values of justice and equality.
COMMENTARY
Section 278 of the Criminal Code of Canada is an important provision in Canadian criminal law, as it allows for the charging of a person with an offence against their spouse, even if they were not living together at the time the offence occurred. This provision recognizes that intimate partner violence can occur within marriages and relationships, regardless of whether those relationships are living together or not. The provision allows for charges to be brought against a spouse for offences under sections 271, 272, and 273 of the Criminal Code. Section 271 deals with sexual assault, section 272 deals with the sexual exploitation of a person with a mental or physical disability, and section 273 deals with the abduction or forcible confinement of a person. These offences are all serious crimes that can have significant and long-lasting effects on the victim. One of the key aspects of section 278 is that it recognizes the power dynamics that can exist within intimate relationships. It is not uncommon for a spouse to use their position of power and authority to commit offences against their partner, which can make it difficult for the victim to come forward or seek help. By allowing charges to be brought against a spouse, regardless of their living situation, the law takes a strong stance against domestic violence and abuse. It is important to note that section 278 does not create new offences. Instead, it simply allows for charges to be brought against a spouse for offences that are already part of the Criminal Code. This means that the same legal tests and standards must be met in order to secure a conviction, regardless of the relationship between the accused and the victim. Section 278 also addresses some of the practical challenges that can arise when charging a spouse with an offence. For example, it allows for the use of victim statements as evidence, even if the victim is not willing or able to testify in court. This can be particularly important in cases of intimate partner violence, where the victim may fear retribution or be coerced by the accused. Overall, section 278 of the Criminal Code of Canada is an important provision that recognizes the reality of intimate partner violence and abuse within marriages and relationships. By allowing charges to be brought against a spouse, even if they are not living together, the law sends a strong message that domestic violence and abuse will not be tolerated in Canadian society.
STRATEGY
Section 278 of the Criminal Code of Canada criminalizes offences committed by spouses against one another. This section is particularly significant because it allows for the prosecution of individuals who commit certain crimes against their spouses, even if the couple is no longer living together. When dealing with this section of the Criminal Code, there are several strategic considerations that lawyers and other legal professionals should keep in mind. First and foremost, it is important to understand the scope of Section 278. This section applies to three specific Criminal Code offences: assault (Section 271), sexual assault (Section 272), and sexual assault with a weapon, threats to a third party, or causing bodily harm (Section 273). While the section does not apply to other offences, it is possible that other charges could be laid in the absence of specific language under Section 278. One strategy that could be employed in dealing with Section 278 is to focus on the relationship between the spouses. Generally speaking, the section is intended to protect individuals who are in a spousal relationship from abuse and violence. Lawyers may be able to argue that the relationship between the accused and the complainant did not meet the definition of a "spousal relationship" as defined under the Criminal Code. This could potentially result in the charges being dropped altogether. Another strategy that legal professionals might use is to challenge the evidence put forward by the prosecution. The Crown will need to present evidence that the alleged offence did in fact occur and that it was committed by the accused. This evidence could take many forms, including witness testimony, physical evidence, and forensic evidence. It may be possible to challenge this evidence and have it ruled inadmissible, thereby weakening the prosecution's case. A further strategy that could be employed in cases involving Section 278 is to seek out legal precedents. Depending on the circumstances of the case, other cases that have dealt with similar issues may be relevant. Legal professionals may be able to use these precedents to argue that the charges should be dropped or reduced. Finally, one important consideration when dealing with Section 278 is the potential impact on the accused's reputation and personal life. If charged and convicted under this section of the Criminal Code, the accused may face significant personal, social, and economic consequences. Legal professionals may need to employ strategies that prioritize minimizing the damage to the accused's personal life, even if it means accepting a less favorable legal outcome. In conclusion, Section 278 of the Criminal Code of Canada is an important tool for addressing violence and abuse within spousal relationships. When dealing with this section, legal professionals should be aware of the scope of the section, potential legal challenges, relevant precedents, and the personal impact of the charges on the accused's life. By carefully considering these factors, legal professionals can develop effective strategies for protecting their clients and achieving the best possible outcomes in Section 278 cases.