Defending Against Allegations of Domestic Assault in Canada

May 18, 2021
Defending Domestic Assault Charges
Domestic Assault charges require an experienced criminal lawyer.

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 underreported, with approximately 70% of cases not reported to the police. 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 abuse 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 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 assault, 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, 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 the court will consider for cases of domestic assault, including: 

The Seriousness of the Injury 

If you can show that the seriousness of the injuries was far less than claimed, this can open up the opportunity to argue that the facts are exaggerated or simply its a matter of a false allegation.

Character Reference

It is helpful to show that the accused is an upstanding citizen with a good job or is a good parent to their children. Character references from employers, neighbours, or other people in the community can help defend you in court. 

Programs to Resolve Conflict 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.

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 abuse and any prior criminal 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. Some considerations include:

  • The amount of physical force used and the physical injuries
  • Was there an aggravated assault or an assault causing bodily harm
  • Has there been a pattern of domestic abuse or any other criminal offence
  • 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 feels there is a risk of future domestic violence, they may impose a no-contact order between the alleged victim and the assailant. If you have been released under a no-contact order, 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 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 offences, the sentencing for a conviction of domestic assault could be to pay a fine, go on probation or serve jail time. In cases that the allegations are minor an absolute or condition discharge may be negotiated with the Crown Attorney.

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.

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