A typical person may find himself or herself exceptionally in trouble with the criminal courts and in fact may find himself or herself having to reconcile what seems to be an illogical or even contradictory order. However, it is very important to follow court orders despite what on the surface appears to be a contradiction.
For example, it often happens in family disputes that one or the other party is arrested, for example, for assault or verbal threats. Even if the party arrested is one of the owners of the house, or in fact is the sole owner of the house, the police may impose a condition upon the person being arrested to not return to his or her house. This condition, if signed by the accused, becomes binding and the failure to respect it can have further legal consequences. Once the person appears in Court, this condition, if not changed by the Court, remains binding, and becomes an order of the Court, and must therefore continue to be respected.
The apparent contradiction is that the criminal court is ordering the accused to not go to a house or a property that he or she owns, in whole or in part. Within the context of the civil law, he or she remains the owner with the full rights of ownership but, because of the order of the criminal court, he or she cannot go to that property. The apparent contradiction is only that, an apparent contradiction. In fact, there is no real conflict, because civil courts and criminal courts do not have the same jurisdiction. Rather, they have jurisdiction over the same persons but not over the same subject matters.
Criminal courts judge the innocence or guilt of accused persons and impose punishment and, in order to guarantee an orderly process, can impose certain conditions on an accused, but those conditions do not strip the accused of his or her civil rights. Civil rights include the right of the ownership, and the right to dispose of property. Civil rights should normally also imply the right to use and be present at the property, but those rights can in fact be temporarily suspended by the need to respect the order of the criminal court not to go to a certain address.
It sometimes happens in practice that prosecuting attorneys will agree to have the court make exceptions or, if not, a motion can be made to the court to have an exception made or even to completely modify or annul such an order. Such exceptions or modifications are often in place where, for example, divorce or separation proceedings are also underway, so that complying with a civil court’s order does not cause the accused to disobey the order of a criminal court.
Also, if the alleged victim decides to leave the family home voluntarily, then the prohibition against the accused presenting himself or herself at the family home can be removed entirely.
It is up to the accused who is the subject of the order of a criminal court to reconcile what may appear to be conflicting orders and find a way to respect both. The consequence of a failure to respect a criminal court’s order can be very serious, including arrest, or detention, as well as further punishment. The failure to obey a civil court’s order can also be serious, including losing a lawsuit as well as, in some cases, contempt of court proceedings, which may also lead to fines and/or imprisonment.
In any such case where a person is confused by the apparent conflicts between their civil rights and the judgments of different courts, it is extremely prudent and probably very necessary to consult your attorney.
Franco Tamburro, attorney-at-law
Alepin Gauthier Avocats Inc.