Domestic violence in Ontario has become a “zero tolerance” crime. The guidelines that police follow when investigating domestic assault charges are very clear and allow them almost no discretion. A domestic violence lawyer explains why there is zero tolerance for these crimes and how domestic assault charges can affect your personal and professional life.
Domestic assault, also referred in general as domestic violence or domestic abuse, is any assault allegations between spouses, intimate partners, common law partners, former partners or siblings. An alleged assault occurs whenever someone directly or indirectly applies force to another person or attempts or threatens to apply force to another person. A domestic assault lawyer, is your best bet to navigate these complex charges.
Common criminal offences that are often included in the domestic violence cases:
- Aggravated Assault
- Assault Causing Bodily Harm
- Criminal Harassment
- Sexual Assault
- Utter Threats (Death or Bodily Harm)
- Forcible Confinement
WHAT ARE ZERO TOLERANCE CRIMES?
Zero tolerance crimes are offences that have strict guidelines and top-down imposed policies. In most circumstances police officers are not able to exercise their own discretion. If there are reasonable grounds to suspect that a domestic assault has occurred the police are duty bond to lay charges. As well, Prosecutors often can only resolve domestic violence cases in predetermined ways and also have little ability to have the charges dropped. Examples of zero tolerance crimes in Toronto include domestic violence, sexual assault, and impaired driving.
In the past zero tolerance laws have been met with scrutiny. Zero tolerance policies, such as those in New York in the 1990s, and California’s three strike rule bred a lot of controversy. The policies were accused of having racist consequences. As well, they tended to focus more on minor and street level crimes, ignoring white collar crimes.
In most places zero tolerance policing, as a whole, has been phased out. However, a few crimes remain under it’s umbrella. The nature of domestic violence charges makes them one of the special cases where these narrow zero tolerance policies applies. Without strict initiatives, victims living with the accused often unwilling or feel pressured into not pursuing charges. With zero tolerance punishments must be meted out, in hopes of preventing or changing the violent behaviour.
One of the major criticisms about this policy in Ontario is that zero tolerance crimes use most of the court resources and that all accused, regardless of their specific circumstances, are treated in the same manner with very little discretion from the Prosecutors. While there is a call to revisit these policies, if you are facing charges now, you need to know what a zero tolerance policy means for you.
WHAT THIS MEANS FOR YOU
If you face charges for domestic assault, you will go to court. It is almost mandatory for police to lay criminal charges when domestic violence allegation are made. Unfortunately in some cases they may not even fully investigate complaints before laying charges. Rather, they arrest the accused, lay the charges, hold them overnight for a bail hearing, and move the matter to the Crown Attorney to sort out.
At this point, your defence is up to your domestic violence lawyer. Regardless of the circumstances surrounding your arrest the Crown will almost always want you to enter into a peace bond and/or attend counselling.
CAN THE VICTIM WITHDRAW THE CHARGES?
In the case of domestic assault it is the police, not the victims, who lay the charges. That means that the victim cannot withdraw charges, even if they want to. Victims have no ability to have the charges dropped once their partner is charged with a domestic related offence. The prosecution is under just as strict guidelines as police for domestic violence charges. But, the Crown will certainly receive input from the Victims Services, the police officers involved in the case and the complainant on how they wish to proceed. This will ultimately factor into the prosecuting Crown’s assessment if they can prove their case beyond a reasonable doubt if there is a witness that is reluctant to participate in the prosecution.
The case will not likely just be dropped if the victim does not show up to court. In fact the Crown Attorney will seek to adjourn or postpone the case until they can bring the victim to court or determine why the victim failed to attend court. If necessary the Crown can issue a warrant for their arrest.
WHAT ARE THE CONSEQUENCES FOR DOMESTIC ASSAULT CONVICTIONS?
Domestic assault convictions affect your personal life, professional life, relationships, and damage your reputation. They can even affect future family law matters and impact child custody or access or the accused’s ability to return to the family home. In addition to this, there are legal implications as well.
Consequences for domestic assault convictions under Canadian criminal law include:
- Imprisonment – up to 5 years
- Intermittent Imprisonment (Sentence serves on weekends)
- Conditional Sentence (House Arrest)
- Lengthy Probation
- Court Order Counseling – PARS (Partner Assault Response Services)
- Peace Bond
- Criminal Record
There are two ways the Crown can proceed with domestic assault cases:
- By Way of Indictment
Crown Proceeds Summarily
Summary convictions are more minor. They may result in fines, jail time, or both. Crown will likely request a Peace Bond when resolving domestic violence cases.
Crown Proceeds By Way Of Indictment
These are more serious than summary offences. For these offences you are entitled to a trial and should hire a domestic violence lawyer. You are open to greater punishments.
CAN I POST MY OWN BAIL FOR DOMESTIC ASSAULT CHARGES?
In short, yes, you can post your own bail for domestic assault charges (own recognizance). However, there are conditions. In domestic violence cases most people are held overnight before a show cause or bail hearing. At the bail hearing the Crown Attorney often, but not always, needs to show cause why an accused person should be denied bail and detained.
The Crown needs to give reason for the accused to remain detained. The Crown can seek grounds for the accused’s detention to:
- Ensure attendance in court
- The protection/safety of the public
- Main confidence in the administration of justice
With domestic violence, the protection and safety of the public is a primary concern. The Crown considers a number of factors such as:
- The severity of the offence
- The accused’s history
- Psychiatric/medical/abuse issues
- Level of violence
If there is evidence of a high risk level, bail is not granted. It is advisable to hire an experienced bail lawyer. Getting released on bail with favourable bail conditions is important to your personal freedom. It is becoming increasingly difficult to change bail conditions after they are set.
HOW A DOMESTIC VIOLENCE LAWYER HELPS
The best domestic assault lawyers understand that the most important goal is to avoid a guilty charge. In addition to the social stigma, a conviction for domestic violence has significant consequences.
A conviction means a criminal record. Having a criminal record affects your future. An accused person can lose out on career opportunities, potentially lose their job, lose the ability to travel and damage their reputation.
Returning to normalcy is often the most immediate concern for clients seeking a domestic assault lawyer Toronto. They want to resolve the matter as quickly as possible. With the ultimate goal of going back to how things were before the incident.
In part this can depend on the severity of the charges. Returning to normalcy does depend on the ability for both the accused and the victim’s to reconcile. However, once the incident has occurred, nothing can be done to change it. The only proactive solution is to hire a domestic assault lawyer as soon as possible.
Your criminal defence lawyer not only handles your case quickly and effectively, but with discretion. Discretion and speed help to reduce pressure on both the accused and the complainant, reducing stress and making it easier to forward.
Hiring an experienced domestic violence lawyer soon after being charged is usually the best strategy. Is some cases evidence needs to be persevered quickly. For example security video might need to be saved before its erased or text messages and email saved and recorded before they are accidentally deleted. An experienced lawyer will be able to assist in preparing for your trial or help you decide if its a better decision to plead guilty early and take advantage of a lower Crown position. Either way, they will help you prepare for what is upcoming, including the process and potential consequences. As well, they will be able to secure appropriate bail conditions while you await your trial date.
HIRING A DOMESTIC VIOLENCE LAWYER
If you or a loved one has been charged with domestic assault, you need to seek legal advice from an experienced criminal defence lawyer. William Jaksa is a criminal lawyer based in Toronto, Ontario who has a proven record of success in defending allegations of domestic assault over the past 15 years. He understands that results matter.