Statistics reveal that every six days a woman in Canada is killed by intimate partner violence. While domestic assaults can involve all genders, we know that 80% of the victims are women. Domestic assault is one of Canada’s most common violent crimes and is still under-reported, with approximately 70% of cases not reported to the police in the first place. These criminal offences usually happen in the privacy of the family home while usually associated with an intimate relationship it often happens with family members.
Because of the severe impact of domestic violence on the lives of women and children, courts take domestic assault and allegations of domestic assault very seriously. In this post, we’ll discuss the legal definition of domestic assault and discuss the defence options available, as well as what you need to consider if facing allegations of domestic assault.
THE LEGAL DEFINITION OF DOMESTIC ASSAULT IN CANADA
Domestic violence is considered violence against family members, but it is not limited to intimate partner violence, and the person does not have to live at the same address. Domestic violence is not officially classified in the Canadian Criminal Code, and definitions can vary according to jurisdiction across Canada.
In the Ontario Violence Protection Act, domestic violence is defined as direct physical or emotional abuse against the victim or the victim’s relative or any child. It includes:
- An assault that consists of the intentional application of force, either directly or indirectly, that causes the applicant to fear for his or her safety but does not include any act committed in self-defence.
- An intentional or reckless act or omission that results in an assault causing bodily harm or damage to property.
- An act or omission or threatened act, uttering threats or omission that causes the applicant to fear for his or her safety.
- Forced physical confinement, without lawful authority.
- Sexual assault, sexual exploitation or sexual molestation, or the threat of sexual violence, sexual exploitation or sexual molestation.
- A series of acts collectively cause the applicant to fear for his or her safety, including following, contacting, communicating with, observing or recording any person.
TYPES OF DOMESTIC VIOLENCE
There are different types of domestic violence involving multiple types of force or threats of force. They are:
- Physical: any physically aggressive behaviour or indirectly physically harmful behaviour, withholding care or physical need or threat of physical abuse.
- Psychological: also called emotional abuse, this includes behaviour that seeks to control another person through fear, insecurity and manipulation. It can also include verbal assault.
- Sexual: sexual abuse involves using sex in an exploitative fashion or forcing sex on another person. It can include physical and verbal behaviour such as making fun of another’s body or making sexual comments.
- Criminal Harassment: harassment includes behaviour like stalking, following, repeated contact through the phone or any conduct that would cause a reasonable person to fear for their safety or the safety of their immediate family.
DEFENCE OF DOMESTIC VIOLENCE ALLEGATIONS
Each case involving domestic violence and family violence is different and will apply different strategies for different goals. If domestic violence charges are not credible, or there is not enough evidence to support a conviction, or there is contradictory evidence, a criminal defence lawyer can help you understand the options in your case and help create a defence to get the best possible outcome.
There are many factors that must be considered in domestic assault cases, including:
The Seriousness of any Injuries
How serious are the injuries? Do the injuries rise to the level that assault cause bodily harm or aggravated assault charges are warranted? Will the complainant recovery from the injuries or are they life altering? During the course of the abuse was there instances of assault with a weapon? The extend of the injuries and the impact its had on the complainant will be a significant factor to Crown assessing the case and to a Judge if they need to determine a sentence.
In review of the disclosure defence counsel will examine any medical records provided, any photos taken by the police or any photos taken by the complainant to assess the injuries. The nature and seriousness of any injuries in domestic violence cases can be the single most significant factor in determining if the charges proceed to trial. Crown Attorney’s will always consider seriousness of any reported injuries when assessing the case and at trial will make ensure that extent of the injuries are highlighted to the Judge.
At trial defence counsel will attempt to mitigate, as much as reasonably possible, the extent of the injuries and certainly highlight any exaggerations of the injuries or the possibilities that there are false claims of injuries.
Programs to Resolve Conflict Domestic Assault Cases Outside of the Criminal Justice System
Not all cases of domestic assault are best served by a criminal sentence. There are many community programs available that help individuals who use violence to change their behaviour. If you can show the court that you are serious about changing your behaviour and commit to a conflict resolution program such as the PAR program (Partner Assault Response Program) or even private counseling, you may be able to avoid a criminal record. These programs are operated by various community based organizations and qualified therapists.
Crown Attorney’s Review of Domestic Assault Charges
When a Crown Attorney is reviewing the allegations in a domestic violence case they are concerned about factors that indicate a history of domestic violence and any prior criminal code offence. A Crown prosecutor will want to ensure that they reviewed the thoroughly before a reasonable guilty plea position or considering to withdraw the charges. A domestic assault lawyer during the required pre-trials can highlight some of the mitigating factors in addition to the following Crown considerations:
- The amount of physical force used and the physical injuries
- Was there an aggravated assault or an assault causing bodily harm or just a simple assault
- Was there an assault with a weapon?
- Has there been a pattern of domestic abuse or any other criminal offence
- Is this the first time charges are laid
- Are there any other criminal charges
- Are there any mental health considerations
- Were there any allegations of sexual assault or force sex acts
- Did children witness any of the violence
- How will a criminal conviction impact the accused person
- Any prior criminal records to consider – any other domestic assault charge
- Is this criminal case appropriate for anger management counselling or a diversion program
- How long of a jail sentence is in the public interest
DOMESTIC VIOLENCE SENTENCING – NO CONTACT ORDERS
If the court believes that there are grounds to support a risk of future domestic violence, they may impose a no-contact order between the alleged victim and the accused person. This will be a condition on a bail order. However, if you have been released on a promise to appear almost certainly there is a no-contact or no-communication condition on the release. It is essential to understand the specifics of that order.
If you live with the alleged victim, it may mean that you cannot go to the family home or have any contact with that individual. Be sure to speak to a domestic assault lawyer to have these conditions changed before you attempt to communicate or return home. Which means no phone calls or text messages.
A no-contact or no communication order may also be included as a condition on a section 810 Peace Bond or even on a Common Law Peace Bond.
Depending on the seriousness of the domestic violence charges, the criminal code charges involved, the allegations there is a range of sentencing options available after a conviction of domestic assault. Again, depending on the severity of the allegations sentencing options could include a Fine, a Suspended Sentence, a short and sharp Jail Sentence and a Probation Order. In cases where the allegations are minor an Absolute or Condition Discharge may be negotiated in advance with the Crown Attorney, or counsel will advocate for a Discharge at the Sentencing Hearing.
If you face allegations of domestic assault, or a family member has been charged, you need an experienced criminal lawyer or a domestic assault lawyer on your side to help you understand the allegations, how the criminal law operates, and help defend your case to avoid a criminal record or help find a solution outside of court to get the charges dropped. William Jaksa is an experienced criminal defence lawyer with over 15 years of experience defending clients in Toronto.
WHY DOMESTIC VIOLENCE SENTENCING IS TREATED MORE SERIOUSLY
Domestic assault convictions have serious consequences that can impact the rest of your life. Sentencing for domestic assault convictions is typically more severe than for other types of assaults, and there are good reasons for this. Domestic assaults involve attacks on people that have intimate relationships, and these crimes carry a unique emotional trauma. These assaults often happen behind closed doors and in the safety of their own homes. If you’ve been convicted of a domestic assault, it’s important to understand the sentencing consequences and take steps to rehabilitate yourself so that you can move on with your life. Sentencing in domestic assault cases often involves more than receiving a criminal record.
When most people think of domestic violence, they think of physical abuse. However, domestic violence encompasses a much broader range of behaviors than just physical abuse. It includes any behavior that is used by one partner in an intimate relationship to control or dominate the other partner. Also, such criminal offences as sexual assault, assault causing bodily harm, uttering threats and aggravated assault are all common domestic related charges.
Domestic violence and common assault cases share many similarities in injuries and actions. Ontario courts, however, do not treat them the same way, especially for first time offenders. Domestic assaults, though not technically classified as a separate offence, are treated as a serious aggravating factor and often have special assigned Crown Prosecutor that handle these cases separately from other criminal charges. Also, it is very common to have special court dates set aside just to handle domestic assault charges.
Ontario’s Domestic Violence Court (DVC) is a program designed to handle domestic assault related matters, simplifying the prosecution of cases. It recognizes that there a different set of needs exist within domestic matters that require a separate approach.
The DVC may use an integrated system, allowing a single Judge to rule over matters where family law and criminal law overlap. As well, this system offers greater support to victims, increasing offender responsibility and providing early intervention.
MORE SEVERE SENTENCING FOR DOMESTIC VIOLENCE
Domestic assault may be treated as an aggravating factor in assault offences, which increases the severity of sentencing. It may also be tried as Intimate Partner Violence which, unlike domestic assault, is classified under the Criminal Code.
Intimate partner violence classifies can classify intimate relationships under a broad umbrella ranging from dating to marriage, including both current and past relationships, same sex partners and can even include siblings and other family members. Intimate partner violence may involve the use of multiple types of force, or threats of force, including:
- Sexual Assault
- Criminal Harassment
Even before the criminal trial, the domestic nature of these criminal offences can come into effect. It adds extra consideration to bail hearings and the bail conditions imposed by judges. There exists a higher risk of being denied bail if there appears to be potential for psychological, physical or emotional distress to the victims should the accused be released back into the home. If granted bail, conditions may be stricter and are likely to include a non-communicate order. This could mean no phones or text messages to spouses or children.
If found guilty, high-risk offenders, especially those that already have a serious criminal record, are more severely impacted. They will have their case referred to the High-Risk Offender National Flagging System, and the Prosecution may submit a Dangerous/Long-term Offender Application. This process identifies the offender as a violent offender with a high risk of re-offending. This can result in restrictions on personal freedoms and act as an aggravating factor in future offences.
Additional counselling programs, such as the Partner Assault Program, are likely to be included if receiving probation, especially for those in the criminal justice system for the first time.
SENTENCING RANGES FOR DOMESTIC ASSAULTS
When charged with a domestic related assault all the sentencing disposition are available. The sentencing Judge is allowed to impose an Absolute or Condition Discharge under section 730. They can structure a sentence that involves Fines and Probation or impose a Conditional Sentence Order (CSO). The maximum sentence if the Crown proceedings by Indictment is 5-years.
WHY DOMESTIC ASSAULT IS MORE SERIOUS THAN ASSAULT
Domestic assault is viewed as so much more serious than assault because of the level of impact on the victim. Research has found that domestic violence has greater and longer-lasting effects than assault. These include anxiety, depression, emotional distress, eating and sleeping disorders, and even suicide. Depending on the circumstances, individual, and intervention these effects can manifest over weeks, months, or years.
As well, domestic violence disproportionately affects specific segments of the population. Women, children, and impoverished are victimized significantly more than the general public. More severe handling of offences is intended to protect marginalized individuals.
In a common assault, a single instance is more likely to be reported. With domestic violence, however, the offence is usually part of a longer pattern. It can go on for years behind closed doors, in the safety of the victim’s own family home. Victims often stay to keep the family together, because of financial considerations, or the fear that leaving or reporting the violence will make their situation worse.
DOMESTIC ASSAULT SENTENCING CONSIDERATIONS
When determining the appropriate sentencing for a domestic assault the Judge must consider a number of factors. First they must determine the sentencing principles that best apply to the case at hand. With domestic matters the primary principles are Denunciation and Deterrence. No prior criminal history, no prior contacts with police and if this was a first offence would all be significant considerations.
Then the sentencing Judge must consider and weigh the aggravating and mitigation factors of the case.
TORONTO DOMESTIC ASSAULT LAWYER
If you or a loved one are facing assault charges in Toronto, a criminal defence lawyer is your best option. William Jaksa is an experienced criminal lawyer who understands that you are more than your charges. He will help you understand your charges, your options to avoid a criminal record and jail time.
Contact William Jaksa today for a consultation.