What is Domestic Assault?
Allegations of assault that occur between spouses, an intimate partner, or depending on the circumstances can even include assaults between siblings and former partners are considered “domestic assault”. Allegations between same sex partners are certainly also considered under this domestic violence rubric. When charged with a domestic violence related criminal code offence its highly recommended that you contact an experienced criminal defence lawyer before your first court date.
Domestic violence charges are treated very seriously by the police and Crown Attorney’s Office. When investigating these allegations police have very clear guidelines on when to lay criminal code charges. Many Crown Attorney’s Offices have specialized Crown Prosecutors that are assigned to deal with these specific types of allegations. You will need to speak to a criminal lawyer in relation to your domestic assault case.
Related Domestic Assault Charges
In domestic violence cases there are a number of Canadian Criminal Code offences that could apply, typically the most common charges when dealing with spousal assault or intimate partner assault cases involve assaults ranging from simple assault to aggravated assault and assault causing bodily harm, and often assault with a weapon. Domestic assault charges also included allegations of choking, uttering threats and sexual assault.
Is Simple Assault Considered Domestic Violence?
Under Canadian criminal law a domestic charge can include simple assault, which can range from a minor push, grabbing, or even verbal abuse that is accompanied with pointing or other gestures that apply force either directly or indirectly. 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.
In the most serious of cases they can involve homicides. The Government of Canada advises that between 2014 and 2019 there were almost 500 victims of intimate partner violence that resulted homicides in Canada. That approximately 80% of the domestic assault victims were women.
In addition, often police lay other criminal offences, depending on the domestic assault allegations, such as criminal harassment, sexual assault or forcible confinement charges, utter threats and mischief if there was property damage.
Consequences of Facing Domestic Assault Allegations
People facing domestic assault charges should seek the assistance of an experienced criminal lawyer to help them navigate the criminal justice system by speaking with the Crown Attorney to help reduce the risk of jail time and avoid a record. The consequences of being found guilty under Canadian law could be life changing by way of limiting future employment opportunities and causing irreparable reputational harm. People often fail to realize the impacts that a criminal offence or a criminal record can have on their lives. Criminal convictions arising from domestic violence cases may even strain family and personal relationships and could have unforeseen consequences in family court proceedings, in future child custody and access matters, and may involve an investigation or visits from the Children’s Aid Society. Sometimes with the assistance of an experienced domestic assault lawyer the Crown prosecutor can be convinced that a diversion program without having to plead guilty is the best result over everyone involved.
If found guilty or upon pleading guilty, 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.
Sentencing for Domestic Assault Convictions
If an accused person is found guilty after a trial or there is a guilty plea there are no minimum or mandatory sentences for offenders convicted of common assault for domestic assault cases. Also, all sentencing dispositions are available (including an absolute or conditional discharge) on summary dispositions there is a maximum of 2 years less a day in jail and/or a $5000 fine. While on indictable dispositions offenders can be sentenced to a maximum of five years of incarceration. A criminal lawyer will best understanding how to mitigate sentencing and criminal convictions to achieve the best results in the circumstances.
Considerations When Assessing Domestic Violence Cases
Very often the Crown’s that specialize in domestic violence matters will consider early resolutions for first time offenders when the allegations are minor or not serious. Early resolution offers will often include counselling focused on communication strategies which aim to teach dispute resolution and anger management techniques. Other considerations that prosecutor’s have when assessing domestic violence matters may include:
- The seriousness of the allegations
- Extent of any physical injury, was there bodily harm or was this an aggravated assault
- Sexual assault allegations or other force sexual acts
- Previous domestic abuse allegations – prior police involvement
- Prior domestic related convictions – previous criminal record for assault or any other criminal offence
- The personal circumstances of the spouses or partners
- If the victim was particularly vulnerable
- Level of violence or physical force used – was there choking – was there an assault with a weapon
- Did a child witness the violence – were children present
- Immigration status
- Mental health considerations for any involved parties
Peace Bonds for Domestic Assaults
Most early resolution offers will require the offender signing a Section 810 Peace Bond or a Common Law bond. These are almost always a requirement by the Crown Attorney when resolving these types of matters. It creates a permanent record of the occurrence that the police will always have access to and cannot be deleted or hidden by a criminal record suppression or pardon. This means that the police, in any Canadian jurisdiction, will always be able to see that a person was involved in a domestic matter. Future employers may also be made aware of the allegations on employment criminal background checks that are routinely conducted at the police station. A criminal lawyer should be able to explain what will appear on background checks and if a domestic assault charge will appear.
After Being Charged with Domestic Violence Case
After being charged with a domestic assault related offence Courts will almost always impose strict bail conditions that prevent contact directly between the accused and the alleged victim and perhaps their children. This means no in person meetings with children, no text messages or phones either. These conditions often prohibit an accused from attending their family home and can severely limit access to their children. You will need legal advice from an experienced defence lawyer to help find the way through this process. Early in the criminal court process a defence strategy needs to be formed to ensure the best results or help get the charges dropped. A criminal lawyer will explain the possible defences available and whether there is enough evidence to even warrant a criminal charge. Often family members will need to be interviewed, communication with the complainant or their lawyers need to be established, a bail condition or release terms need to be varied and private counselling programs need to be considered. Often the complainant’s wishes are that they want to resume contact and this needs to communicated to Crown or victim services workers as soon as possible. Varying bail conditions and resuming contact between spouses and children is often in the best interests of the family.
Also, when establishing a defence strategy there should be a focus on gathering and preserving evidence that will show the allegations were false or will confirm that the police investigation lacked the necessary thoroughness. Another strategic consideration will be whether to attempt a negotiated resolution or immediately set a trial date.
When retaining William Jaksa, an experienced Toronto criminal defence lawyer, with over 15 years of practicing criminal law, you are assured an excellent defence. If charged with a domestic violence case please give us a call at our toll free number: 1-844-LAW-WILL.