By: William Jaksa Criminal Litigation May 18, 2021

DEFENDING AGAINST ALLEGATIONS OF DOMESTIC ASSAULT IN CANADA

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. Contact William Jaksa before your first court date for legal advice.