DOMESTIC ASSAULT CHARGES: NOW WHAT? WILL THERE BE A CRIMINAL RECORD?
Anyone that has been charged with domestic assault should seek assistance from an experienced criminal lawyer to help navigate the criminal justice system. The best way to reduce the risk of jail time and avoid a criminal record is to have a criminal lawyer by your side. Often people do not realize, until they are facing domestic assault charges, how profound and life changing the consequences of being found guilty under Canadian law could be. Having a criminal record could limit future employment opportunities and cause irreparable reputational harm. Every experienced criminal defence lawyer has represented clients that have been charged with criminal code charges related to domestic violence. These charges often include assaults ranging from simplecommon assault, to aggravated assaultandassault causing bodily harm. In the rarest of cases domestic violence against intimate partners can lead to a homicide.
But domestic assault charges also often include such Canadian Criminal Code charges as uttering threats, choking, sexual assault, criminal harassment, forcible confinement and mischief.
WHAT ARE DOMESTIC ASSAULT CHARGES?
Domestic assault charges are simply allegations of any type of assault that occurs between spouses, intimate partners, or depending on the circumstances can even include assaults between siblings and former partners. Allegations between same sex partners are certainly also considered under this domestic violence rubric.
Domestic assault charges include simple assaults, which can range from a minor push, grabbing, or even verbal abuse that is accompanied with pointing or other gestures that apply force. However, in domestic assault cases in which police determine that there is sufficient evidence to support a conviction and they decide to lay criminal charges, the amount of force is usually greater than a simple push or shove.
Many criminal lawyers will share that in recent years the number of sexual assault and domestic assault cases has steadily been increasing. This increase can likely be attributed to policy changes in how Crown Attorney’s offices and the police are treating these domestic assault allegations and to some degree as a result of influences from various social movements such as #MeToo.
The rise in criminal charges for domestic violence is not limited to people that already have prior criminal records. There has been a sharp increase in criminal charges to people in various types of intimate relationship that have no prior criminal records or even prior interactions with police. Also, far more women are finding themselves charged with domestic assault charges.
Understandably many people who find themselves, often for the first time in their lives, with pending domestic assault charges are concerned about the impacts of a being charged with a criminal offence, and if found guilty the potential impacts of a criminal record and the possibility of a jail sentence.
Criminal convictions arising from domestic violence cases may possibly strain personal and family relationships. Also, a domestic violence conviction could have unanticipated consequences resulting in unfavourable family court orders that could impact future child custody and access matters. Domestic assault related charges and convictions may trigger an investigation or visits from the Children’s Aid Society.
If convicted of a domestic assault offence, an accused person could face punishments such as a jail sentence, a criminal record, a DNA order, a weapons prohibition order, and probation with a condition to participate in Partner Assault Response (PARS) counselling. Often for first time offenders, where the allegations are serious enough to warrant a short term of imprisonment, Conditional Sentence Orders (house arrest) or Intermittent Sentences (weekend jail terms) can be arranged. For a first offence or those with unrelated criminal records, rarely face prison sentences for minor allegations.
STAGES OF DOMESTIC ASSAULT CASE
There are several very clear stages to a criminal case, some people refer to it as process. Every criminal lawyer describes the stages slightly different and have various strategies, depending on the case and allegation, for each stage.
1. The Domestic Violence Incident or Historic Incidents
In a domestic violence case this will be the alleged assaults. Sometimes its one clearly defined alleged assault on an exact day and time. Other times the allegations span over a longer time period without exact dates and times.
2. The Police Investigation
At some point the police are notified and they commence their criminal investigation. Depending on the allegations the police investigation maybe as simple as a single statement from the complainant describing the single incident or could involve multiple witness interviews and gather of other evidence.
3. Arrest and Charges
When the police have formed their reasonable belief and can articulate their reasonable grounds that a domestic assault has occurred, they must lay the appropriate charges. The police will then formally arrest and charge the accused person.
4. Release and Bail Conditions
Once arrested the police will decided if they are holding an accused person for a bail hearing or if they will release the person from the police station with conditions. Police will consider such factors as the allegations, likelihood that the accused will continue the offence or commit another domestic context assault, any prior criminal activity or criminal record and the safety of the public when deciding whether to hold the accused for bail.
5. After Release to First Court Appearance
Often the most stressful time for accused people caused by the uncertainty of not knowing what will happen with the case. During this period, if not done at the time of arrest, the accused will need to attend the police station for photos and fingerprints. Also, as it will be discussed below, this is the time to hire an experienced criminal defence lawyer and start preparing for the pre-trial stage and starting the process of considering the strategic considerations of a trial or an early plea hearing.
6. First Court Appearance
This is the start of the criminal trial process and the start of the pre-trail stage. By this date the Crown Attorney’s office should have some initial disclosure and the Charge Screening Form ready for defence counsel. The Charge Screen Form is the Crown’s preliminary assessment of the case. The Courts primary concern at this court appearance is to determine if disclosure is ready, when its expected to be ready, if the accused has hired a lawyer yet and to maintain legal jurisdiction over the accused. This is not the criminal trial, there will be no witnesses testifying and no pleas taken. Its best considered as an administrative court appearance. But it does the pre-trial stage of the process.
7. Pre-trial Stage
Receiving disclosure or the first court appearance usually marks the start of the pre-trial stage. During this period defence counsel will receive disclosure from the Crown and commence reviewing it. Defence lawyers will try and determine if there is any missing evidence, they will assess the strength of the evidence and witness statements, will determine if the police investigation was sufficient and start considering substantive legal defences and Charter defences.
Lawyers will then schedule meetings with the assigned prosecutor and commence a conversation about potential resolutions, negotiate the withdrawal of charges, discuss plea positions or discuss trial time estimates. These Crown Pre-trials are helpful in assessing all the possible options available to the client and the various Crown positions and considerations.
After the Crown Pre-trial a meeting with a Judge is sometimes necessary to help work out issues that could not be resolved or to assist in setting trial time estimates. These meetings are called Judicial Pre-trials. It will become clear during the pre-trial stage if there is a possibility that the charges will be dropped and under what circumstances or if the matter is proceeding to trial. The pre-trial stage ends when the charges are dropped, a trial date is scheduled or a plea hearing date is agreed upon.
8. Trial Preparation
This is after the pre-trial stage has completed and now there is some certainty as to whether the charges will be withdrawn, there will be a plea hearing or if the case is heading towards trial. Criminal lawyers usually like to meet with their client again at this time to ensure that nothing has been over looked and preparations can begin for the a plea hearing or a trial.
9. A Criminal Trial
Criminal trials are designed to resolve the criminal charges that have brought by the police against an accused person. Everyone charged with a criminal code offence is entitled to a trial, and if the charges are serious enough that person may also be entitled to a preliminary hearing and have a choice of having a Judge and Jury trial.
10. Plea Hearing
At any point after arrest an accused person can choose to plead guilty and have a plea hearing. This can be done right after being charged, instead of a bail hearing an accused person can ask for an early plea hearing. This is never advisable. While some people with extensive criminal records and no potential sureties to assist them with bail choose this approach hoping for leniency with an early plea. This guarantees a criminal record entry and rarely achieves the best results. A plea hearing should only be conducted once all the disclosure is received and reviewed, all the options and consequences have been considered and negotiations with the Crown prosecutor for favourable sentencing terms has been conducted.
11. Sentencing Domestic Assault Charges
Sentencing in domestic violence cases depends entirely on the severity of the allegations and injuries and the prior criminal record of the accused. The sentencing range for most minor to less serious domestic assault convictions can include an absolute or conditional discharge which would avoid a criminal record, most often probation will be considered with conditions to continue no contact order and provide for counselling. With more serious offences and criminal records sentencing will likely include jail and long terms of probation.
CHARGED WITH A DOMESTIC ASSAULT – WHAT HAPPENS NOW?
Predictably most people are concerned about what happens after they are charged with a domestic assault case. In many ways its very similar to being charged with any other criminal offence, except that the alleged victim is an intimate partner or relative. A person that is a big part of the accused’s life. Sometimes there are children involved and other family members.
After the police have laid the criminal charges, their investigation may still continue depending on the allegations. However, by the time the police have decided that they have reasonable grounds to lay charges the investigation has usually concluded. After charges are laid the police work on gather the required documents, officer’s notes, legal notices, the recordings of police interviews and the 911 calls to present to the Crown Prosecutors that will assume carriage of the matter. The evidence that the police provide to the Crown Attorney’s office is in generally referred to ‘Disclosure’.
All disclosure, and all evidence in possession of the police and the Crown will be made available to defence counsel, with very few exceptions. Some of the disclosure in domestic assault cases, more so in sexual assault cases and matters involving children, will be considered ‘sensitive disclosure’ and cannot be given to the accused to possess or retain.
The disclosure will be prepared, organized and made available to defence counsel around the date of the accused’s first court appearance, usually 4-6 weeks after the charges are laid. That is the aim of the Crown, but rarely is all the disclosure available by the first appearance.
During this period, from arrest to the first court appearance, can be a difficult time for people charged with domestic assault. Often bail conditions are imposed that prevent returning to the family home. Visits with children need to be arranged through third parties or the Children’s Aid Society. The is no communication allowed between the accused and victim. Life for most people is drastically different.
Also, during this period some accused, whether those with prior criminal records, or those navigating the criminal justice system for the first time, worry about how the charges will impact their future relationships. If the charges will limit their employment opportunities or ability to travel. For some, they worry about how their reputation will be harmed by the allegations.
These worries are reasonable and are justified.
While not much that can be done with the actual criminal case during this time, an experienced criminal lawyer can start assisting on preparing for trial, gathering evidence and starting positioning the client to ensure the best outcomes. During this time defence counsel will start to identify potential evidence and take measures to ensure that it is preserved for trial. Depending on the allegations that could mean text messages, emails, social media posts, banking records, receipts, security video and meeting with potential witnesses. During this time private counselling or anger management may be recommended.
It’s import for an accused person to follow their release conditions during this period or have the conditions varied so they can comply. Many times, criminal lawyers have clients that are charged with failing to comply with a bail condition and found themselves back in jail. They often need to find new sureties and need another bail hearing. The unfortunate reality is sometimes the original minor domestic charge was withdrawn by the Crown but the client receives a criminal record for the fail to comply.
Also, during this period, prior to the Crown providing disclosure, rarely are the charges dropped or withdrawn. Once the police have laid the charges and filed the required information with the court and Crown the decision to withdraw charges rests with the assigned Crown Attorney.
Receiving disclosure usually marks the start of the Pre-trial Stage. The police and the Crown have legal obligations to provide all the relevant disclosure to the accused and their lawyer. The Crown will usually provide everything relevant in their possession, but may withhold items that are not relevant, that may be collateral to the issues at trial or impact the privacy of a witness. The Crown’s have an obligation to protect the privacy interests of witnesses and parties that are not involved in the proceedings.
What is disclosure?
In the criminal justice system disclosure is a product of the police investigation. The disclosure, sometimes referred to as the disclosure package, will include a summary of the allegations, a list of the charges. It will also include a complete list of witnesses and their statements and a list of police officers involved in the investigation and their notes and various reports. Depending on the allegations and nature of the investigation it will also contain other information police gathered during the course of the investigation, such as security video, seized items, weapons, photos of the crime scene or injuries, medical records, forensic reports, expert reports on evidence, police analysis reports and other evidence collected that supports the prosecution of the charges.
The police should provide the Crown Attorney’s office with the disclosure are soon as practical possible so that it can be shared with the accused and their lawyer. The sooner that disclosure is received the quicker the accused person and their lawyer can assess the sufficiency of the evidence and determine their options moving forward.
Reviewing disclosure early and carefully could make a tremendous difference on how a criminal case will unfold. Experienced criminal lawyers will be able to assess the sufficiency of police investigations and determine the strength of the Crown’s case upon review of disclosure. They will also be able to determine what is missing from disclosure and make requests from the Crown and police for missing items of evidence. Understand the police investigation and the evidence helps an accused make informed decision early on how to proceed.
FACTORS WHEN ASSESSING DOMESTIC VIOLENCE CASES
Defence counsel and Crown Attorney’s that specialize in domestic violence matters will consider a number of factors when assessing domestic assault matter. Some of these factors and considerations may include:
- The seriousness of the allegations – was there an aggravated assault or bodily harm?
- Are the allegations historic or is there a pattern to the alleged domestic violence
- Extent of any physical injuries and how lasting or permanent the injury may be
- Are there medical records or photographs to support the injury claims
- Can any witnesses support the injury claims
- Are there allegations of sexual assault or other force sexual acts
- Previous domestic abuse allegations – prior police involvement
- How restrictive are the bail conditions
- What are the complainant’s wishes?
- Prior domestic related convictions – previous criminal record for any other criminal code offence
- The personal and economic circumstances of the spouses or partners
- If the victim was particularly vulnerable can cannot leave the relationship
- Are there already family court proceedings
- Level of violence or physical force used – was there choking – were weapons involved
- Did a child witness the violence – were children present
- Immigration status
- Mental health considerations for any involved parties
REQUIRED CROWN PRE-TRIAL
After defence counsel have reviewed disclosure and consulted with their clients a meeting is scheduled with the assigned Crown prosecutor to discuss the matter. Pre-trials should be honest and frank conversations between defence and crown counsel to discuss possible resolutions, if a resolution is possible, outstanding disclosure issues and trial estimates. Not every criminal cases can be resolved. The Crown is motivated to resolve cases to ensure that minor cases are not clogging the criminal justice system and that are not in the public interest. However, Crown’s also have obligations to ensure that justice is fairly and honestly served with integrity.
When Crown prosecutors are reviewing the police disclosure, they are constantly assessing the strength of their case, the reasonable prospect of conviction and if the prosecution serves the public interest.
Considerations that the Crown also has when assessing domestic assault cases is the nature and severity of the allegations. Were there serious injuries that lead to aggravated assault charges or assault cause bodily harm charges. Was there any allegations of choking or uttering threats? Did children witness the alleged assaults? Were there any alleged sexual assaults or forced sex acts?
After a Crown Pre-trial a defence lawyer should be able to present a client facing a domestic charge all their options moving forward. After the pre-trial there will be a very good indication if the matter can be resolved with a withdrawal of the chares or an early guilty plea that avoids a criminal record.
If a resolution is not possible then trial estimates should be agreed upon and any important trial issues should discussed. Often the assigned Crown Attorney will not consider dropping the charges if there is an aggravated assault or any serious injuries.
JUDICIAL PRE-TRIALS – THE LAST STEP BEFORE TRIAL OR A PLEA HEARING
A judicial pre-trial is usually required, depending on the courthouse policy, when setting trial dates that are more than a one day. But, most Judges are willing to meet with Crown and defence counsel to assist in reaching potential resolutions or provide guidance of complicated or serious matters. Judges at these pre-trial meetings do not have the authority to make orders to drop charges, but they can certainly comment and provide their opinions on the strength of the Crown’s case and if they believe there may be reasonable doubt. Judges can also assist in helping a Crown decide if they should proceed by way of a summary conviction or by an indictable offence. At these pre-trials often bail conditions are discussed, especially if there is a house arrest condition or a condition keeping the accused away from the family home. Also if a peace bond is an option or if there is any likelihood for the charges to be dropped. The Judge that conducts the pre-trial will not be the trial judge.
THE BEST RESULT IN A MINOR DOMESTIC VIOLENCE CASE
The best results for any domestic assault charge is to have the Crown withdraw the charges early in the process. While Crown Prosecutors often withdrawn charges when there is no reasonable prospect of conviction or proceeding does not serve a public interest, it is very rare to withdraw domestic violence charge early in the process. Often it will require some negotiation with the assigned Crown Attorney and some work by the accused. Completing private counselling or an anger management program helps place the client in a better position for a withdrawal. Often couples counselling can also assist. Most often the Crown’s Attorney’s office will want to ensure that the risk of future domestic abuse incidents are reduced by counselling and will also want a Peace Bond, even if it’s a common law peace bond, in place. A Peace Bond will place conditions on an accused once the charges are withdrawn and will create a record for police in the future indicate that there’s been a history domestic violence incident.
If a withdrawal cannot be negotiated during the pre-trial stage the accused will have a choice to proceed to trial or a plea hearing. This choice belongs to the client, and they will need to consider all the consequences before proceeding. The consequences and considerations will be different for every client. Some clients find value in remaining without a criminal record while others just want to avoid jail and not lose their jobs.
A plea hearing in some cases may achieve the best results. Sometimes the terms and sentence can be agreed upon prior to a plea hearing, other times the only the charges and the Crown’s sentencing position are known. At a plea hearing an accused person will plead guilty to the charges and the Crown will then recommend a sentence to the presiding Judge. The Crown will justify their recommended sentence by explaining the aggravating and mitigating facts surrounding the allegations, the accused’s background, and culpability. When the Crown finishes making their sentencing submission defence counsel then proposes their recommended sentence. Often when the domestic assault charge is minor in nature, and the accused has no prior criminal record, defence counsel will seek either an absolute or conditional discharge and will try to avoid any restrictive probation condition. Sometimes a peace bond can be agreed upon in addition to an absolute discharge to avoid a probation order. A discharge would involve a judge finding a person guilty but does not impose a conviction which means no criminal record in the long term.
Sentencing for Common Assault in Domestic Cases
If an accused person is found guilty after a trial or a plea hearing there are no minimum or mandatory sentences for offenders convicted of common assault for domestic assault cases. Further, a sentencing judge has all possible sentencing dispositions are available, this includes an absolute discharge or conditional discharge. When the Crown proceeded by way of summary conviction there is a maximum of 2-years less a day in jail and/or a $5000 fine. When the allegations were more serious the Crown may elect to proceed by way of an indictable disposition and there is a maximum sentence of 5-years of incarceration. A domestic assault lawyer will best understand how to mitigate sentencing and criminal convictions to achieve the best results in the circumstances.
Finally, if an accused person is innocent and the Crown is not prepared to withdraw the charges and pleading guilty is not the best or appropriate option, the matter will then proceed to trial. Domestic violence trials, like most trials, are unpredictable, but often necessary to prove innocence. The criminal trial process is not perfect. Its not a scientific process. However, its hoped that it’s as fair as possible. An accused person enters a criminal trial with the presumption of innocence until the end of the evidence and a judge passes judgement. The prosecutor always bares the responsibility of proving beyond a reasonable doubt the guilty on an accused.
After a sentencing hearing Judge has made a decision on an appropriation disposition they have the options to add additional orders to ensure that the sentence best servers the public interest. Often Judges will imposed Probations Order to provide the accused, if necessary, to counselling services for addiction, anger management, mental health, or even employment. Often Judge’s want Probation Officers to determine what time of programs and assistance that an offender requires or that’s in their best interest to assist them in living a pro-social life and not reengaging with the justice system. Another focus of Probations Orders are to continue to provide protection or restitution for victims. Other ancillary orders include such DNA Order, Weapons Prohibitions, Restitution, Victim Surcharge Fines, orders to be placed on sex offender registry.
The value that an experience criminal defence lawyer will bring to your domestic assault case can include:
- strategies to ensure that the best possible results are achieved earlier in the process
- assisting to avoid convictions
- mitigating any possible sentences
- legal advice on all the possible options throughout the criminal trial process
- reviewing and analyzing the police investigation for deficiencies
- providing an analysis of the strength of the prosecutions case
- assistance in preparing for trial
- developing effective trial strategies
CONTACTING A LAWYER
If you face allegations of domestic assault, you need an experienced criminal 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. William Jaksa is an experienced criminal defence lawyer with over 15 years of experience defending clients in Toronto. Contact William Jaksa today for a consultation on your case.