While there is no specific offence for domestic assault in the Criminal Code of Canada, assault charges that are domestic in nature are taken very seriously by the police, the Crown Attorney’s Office, and our courts. One reason why domestic assault charges are taken seriously is because of how widespread the problem of domestic violence is in this country. Most Crown Attorney Offices now have lawyers designated to deal exclusively with domestic assault cases.

Getting charged with domestic assault and being convicted for a domestic assault can have very serious and long lasting consequences. If you have been arrested and charged with domestic assault, you need to know what you have to do to successful defend your charges and avoid receiving a criminal record.

1. Speak to a Criminal Lawyer

While this might seem like an obvious thing to do, it is amazing how many people still do not exercise their right to speak with a lawyer when they have been charged with domestic assault. Anytime you are arrested, you have several fundamental rights afforded to you under the Canadian Charter of Rights and Freedoms, including the right to speak to a lawyer without delay.

A criminal lawyer will be in the best position to provide you with immediate legal advice upon you being arrested and charged with domestic assault. For example, you have a right not to make a statement to the police, and it is always recommended that you exercise that right and remain silent. While the police may tell you that this is your chance to tell them your side of the story, the reality is that whatever you tell the police is not going to change your situation or result in the charges being withdrawn. Click here for more information on the Challenges of Getting Domestic Assault Charges Withdrawn.

When you are arrested and charged with domestic assault it is very likely that you will be held for a bail hearing. By exercising your right and speaking with a criminal lawyer, a lawyer can advise about a bail hearing and what you need know and what you need to do to ensure you are granted bail. A lawyer may also be able to contact a friend or family member who can act as your Surety and speak with the Crown Attorney to negotiate the terms of your release.

2. Comply with Your Bail Conditions

Once the Court has granted you bail and you are released from custody, it is very important that you comply with your bail conditions. Anytime you fail to comply with your bail conditions, you are subject to further criminal charges. If you are arrested and charged with failing to comply with your bail conditions, you are going to be held for another bail hearing, and this time the onus is on you to prove to the court why you should be granted bail again. Being charged with domestic assault is already bad enough; you do not need to make things worse by being charged with failing to comply with your bail conditions.

Complying with your bail conditions requires that you understand your bail conditions. For example, anytime you are charged with domestic assault one of your bail conditions will be that you not have any communication or contact, directly or indirectly with your partner or spouse. This means that you cannot use a third party to contact or communicate with your partner or spouse. It also means that you cannot post messages on Facebook or Twitter directed at your spouse or partner and knowing that he or she is likely to see those messages.

Understanding your bail conditions is essential to ensuring you comply with them. A criminal defence lawyer will be able to explain all your bail conditions to you, which brings us to the third thing you need to know if you have been arrested and charged with domestic assault: Hiring a Criminal Defence Lawyer.

3. Hire a Criminal Defence Lawyer

It is always recommended that you hire a criminal defence lawyer as soon as possible. The longer you wait to hire a lawyer, the more opportunity there is for something to wrong. There are a couple benefits to hiring a lawyer right away. First, when you hire a lawyer you have immediate access to legal advice and someone with experience dealing with these types of charges. Understanding the criminal justice system and how a criminal charge proceeds through our courts can be confusing and overwhelming. By hiring a lawyer you can get answers to all the questions you have about your charges and how they will be dealt with. Hiring a lawyer right away also allows a lawyer to appear in court on the first court date so that you don’t have to.

Hiring a criminal defence lawyer will also give you the best opportunity to successfully defend your charges. A lawyer will know how to negotiate a resolution on your behalf and know whether you should go to trial or not. If you choose not to go to trial or it is best that you do not go to trial, then a lawyer will also know what you need to do in order to resolve your domestic assault charges, including whether you need to attend counselling, complete volunteer work or any other requirements that may be necessary. If you do go to trial, a lawyer will know how to prepare you for trial, what questions to ask each witness, what witnesses to call, what defences to present, and how to advocate for you. Click here for more information on Domestic Assault Trials.

Simply put, when you hire a criminal defence lawyer, you are hiring someone to advise you of your rights, what your legal options are, someone to advocate on your behalf and achieve the best possible result for you, and also someone to guide you through the criminal justice system and ensure you are treated fairly.

Domestic assault charges can have very serious consequences. As a result of being charged with domestic assault, you will not be able to return home. If you have children, this can also have an impact on them. Your bail conditions can also make it more difficult for you to see your children while you are on bail. A conviction for a domestic assault can result in a criminal record, the loss of your employment, can prevent you from getting certain types of jobs in the future, and could prevent you from travelling to the United States.

4. Only Speak with Your Lawyer about Your Charges

It is not to your benefit to speak with anyone about your charges except your lawyer. Only if your lawyer advises you to speak with another individual about your charges should you do so. Family members, friends, co-workers, etc., are not going to be able to resolve your charges or get them withdrawn. Talking about your domestic assault charges with other individuals only draws more attention to you and your charges, and you cannot control whether a friend, family member of co-worker tells anyone else about your charges. While it may not seem fair or right, the reality is that many people will often view you and treat you differently if they know you have been charged with a criminal offence.

5. Write Down Your Version of the Events

While it is never recommended that you provide the police with a statement, it can be very helpful if you write down your version of the events as soon as possible after you have been released from jail. Over time memory fades, and writing down your version of the events can help you recall exactly what happened at a later date. Do not share this documentation with anyone except your lawyer, and make sure no one else can access this information.

Contact

If you have been charged with domestic assault contact me immediately and arrange a free consultation. I will explain to you;

• what your legal rights are
• what your options are
• what is the best and worst case scenario
• what I recommend you do
• how much it could cost to resolve your charges

Learn more about Domestic Assault or see FAQs on Domestic Assault

Criminal assault charges are taken very seriously by our courts and can result in result in a jail sentence in many circumstances. A conviction for assault can also have a serious impact on a person’s future. The penalty you can receive and the impact an assault conviction can have on your future are only two reasons why defending assault charges is not something you should consider doing yourself. If you have been charged with assault, there may be one or more defences available to you.  A criminal defence lawyer will be the best position to provide you with the legal advice you need and to assist you in defending assault charges.

Types of Assault Charges

There are many types of assault charges, and you may be surprised to learn that the definition of assault under the Criminal Code of Canada is very broad. The least serious type of assault a person can be charged with is simple assault. This form of assault does not require that a person sustain any physical injuries. An assault can be simple as the intentional application of force without consent, or even a threat or an attempt to apply force.

The most serious type of assault is aggravated assault. Aggravated assault is strictly an indictable offence and has a maximum penalty of 14 years in jail. Aggravated assault occurs when a person wounds, maims, disfigures or endangers the life of another person as a result of assaulting that person. To be found guilty of aggravated assault, the Crown Attorney does not need to prove that you specifically intended to cause the kind of injuries referred to above.

Other types of assault include; assault with a weapon, assault causing bodily harm, assaulting a peace officer, assaulting a police officer with a weapon or causing bodily harm and aggravated assault of a police officer. Most charges involving assault of a police officer result from a person resisting arrest.

There are also sexually-based assault offences which include; sexual assault, sexual assault with a weapon, sexual assault causing bodily harm, and aggravated sexual assault. Defending sexual assault charges will be dealt with in another article.

Defending Assault Charges

Consent

Depending upon the circumstances, consent may be a defence available when defending assault charges. The burden is on the Crown Attorney to prove beyond a reasonable doubt that the alleged victim did not consent to the application of force. The Crown Attorney must prove that the application of force was more than simply the result of carelessness or a reflexive action on the part of the accused person.

Consent to the application of force can be either implied or expressed. For example, consent to the application of force is implied when a person is playing hockey. However, consent cannot be given with respect to consensual fist fights that result in serious or non-trivial harm.

Mistaken Belief

Mistaken belief can also be a defence to an assault charge. For this defence to be considered, the accused person must produce some evidence that there was an honest but mistaken belief that consent was given. It will not be enough for an accused person to simply say “I didn’t know the person did not want to be touched”. An accused person must be able to provide some evidence that would support he or she was under an honest but mistaken belief that consent was given.

Self-Defence

Self-defence is common defence used when defending assault charges. Section 34 of the Criminal Code provides that where a person is unlawfully assaulted without having been provoked, he or she is justified in using force to defend him or herself. The force used must be no more than necessary to defend oneself. Section 35 of the Criminal Code creates a defence where the person relying upon self-defence was the aggressor or provoked an assault. Subsequent sections of the Criminal Code deal with other forms of self-defence that may be used to defend assault charges in some circumstances.

Although not necessarily a defence, the issue of identity can be a factor in some cases of assault. The Crown Attorney must prove beyond a reasonable doubt that the person charged with assault is person who actually committed the assault. Identity will often be an issue where the alleged victim has never met the accused person before.

Pleading to a Lesser Offence

There are some cases where it is clear that there is (1) a factual basis for the assault charges and (2) the Crown Attorney can quite easily prove its case beyond a reasonable doubt. In these circumstances, a competent lawyer may be able to negotiate a guilty plea to a lesser offence. For example, where a person is charged with aggravated assault, a plea to assault causing bodily harm may be negotiated with the Crown Attorney.

Contact

Any charge of assault is a serious offence and a conviction can prevent you from travelling to the United States or obtaining employment in certain circumstances. Contact me today if you have been charged with assault.

For more information about the various types of assault, see my Areas of Practice.

You can also read FAQs on assault.

The Early Intervention program is an initiative of the Ministry of the Attorney General which offers a person an opportunity to resolve any criminal charges for domestic assault at an early date. If you are eligible for the Early Intervention program, then you will be required to complete the 16-week Partner Assault Response (PAR) course. Once you have completed the course you will return to court where the charges against you will be dealt with either by a discharge or a peace bond.

Pros and Cons

Anytime you are charged with a domestic assault, a condition of your bail will be that you do not have any contact, direct or indirect, with your spouse/partner/girlfriend/boyfriend. One of the significant advantages of the Early Intervention program is that it provides an opportunity to have your bail varied so that you can have contact with your spouse/partner/girlfriend/boyfriend provided that they wish to have contact with you and consent in writing. Charges involving domestic assault can take many months to resolve and the Early Intervention program provides an opportunity for a person to return home and begin the process of resolving relationship issues and any other family issues.

A danger that arises with the Early Intervention program is that it can encourage people to enter a guilty plea to a charge they are not guilty of committing, all with a view of being able to return home sooner or to deal with charges as quickly as possible. Individuals who are not represented by a lawyer are particularly vulnerable to pleading guilty in circumstances where they should not be entering a guilty plea, and may not appreciated the future impact that a criminal conviction can have. If you are even considering entering a guilty plea you should speak with a criminal defence lawyer as soon as possible.

Step-by-Step Guide to the Early Intervention Program

The first step in the program is the screening process. At this stage the Crown Attorney will review your file and determine whether your case is one which would be appropriate for Early Intervention. Typically only cases that are screened for Early Intervention are those cases where there is a very minor assault and where the accused person does not have a criminal record. Whether the alleged victim wishes to resume contact and continue a relationship will be considered, however it is not a determining factor. If you have not been initially screened for the Early Intervention program, this does not mean that you cannot get into the program. Often a criminal defence lawyer can have discussions with the Crown Attorney and get the Crown Attorney to consent to you being allowed to participate in the program. This is just one of the many reasons why it is so important to hire a lawyer anytime you have been charged with a criminal offence. However, you should understand that the Crown Attorney has the sole discretion with respect to whether you will be able to participate in the program.

If you have been screened for the Early Intervention program or your lawyer has got the Crown Attorney to consent that you participate in the program, the next step is to adjourn your case to day when you can register for the 16-week PAR course. Which courthouse your matter is in will determine what day of the week you will return to court to register for the program.

On the day you are required to attend court the Crown Attorney will speak with everyone that has been approved for the program about the 16-week PAR course and how your charge will be resolved as a result of you agreeing to enter the program. You will then be required to meet with staff members who facilitate the 16-week PAR course where they will register you for classes at a place, day and time that is appropriate for you taking into account where you live and whether you are working.

Once you have registered for the program you will then return to the courtroom where your matter will be adjourned for several months so that you have an opportunity to complete the PAR program. If you are agreeing to complete the program on the understanding that you will be given a conditional discharge, then you will most likely be required to enter a guilty plea. Your sentence will be suspended until you return to court after completing the program, wherein you will be put on probation for a period of time.

If your charges are being resolved with a peace bond, then you will not be entering any guilty plea. Once you have completed the program you will return to court wherein you will enter into a peace bond and the Crown Attorney will withdraw the charge against you.

What is Written Revocable Consent?

Once you have registered for the program the Crown Attorney will consent to a bail variation which will allow you to have contact with your spouse/partner/girlfriend/boyfriend, provided that your spouse/partner/girlfriend/boyfriend consents to having contact with you and provides written revocable consent. Depending on what courthouse you are in, your spouse/partner/girlfriend/boyfriend may be able to attend court and provide written revocable consent that day. Other courts require that a letter be written and delivered to the officer-in-charge of your case, who will then provide you with a copy on that consent.

It is important you understand that you cannot can any contact with the person until you have received the written revocable consent. It is also important you understand that the person can revoke the consent orally at any time. This means that if the person tells you they do not want to have contact with you anymore, then you must leave right away or you will be in breach of your bail.

Contact Me Today

If you have been charged with a domestic assault, contact me immediately.

Click here for FAQ on domestic assault.

Assault is a very common criminal charge that appears before our courts, particularly charges of assault relating to allegations of domestic abuse. Charges involving domestic assault are so common that some courts will even assign a particular day of the week where these matters are returnable in court or assign Assistant Crown Attorneys to deal specifically with domestic assaults.

Despite the common usage of the term domestic assault, there is not an actual offence of domestic assault under the Criminal Code of Canada. Rather domestic assaults fall under the various offences of assault ranging from simple assault at one end of the spectrum to sexual assault at the other end. However, because of the prevalence and unique circumstances regarding domestic violence, any assault which is domestic in nature is treated differently.

It is not uncommon for an accused person to ask their lawyer whether the charges can be withdrawn because their spouse or partner does not want them to get into any more trouble and therefore does not want to proceed with the charges. In these circumstances clients will want to know why charges against them will not be withdrawn when their spouse or partner is not likely to be a cooperative witness or is likely not attend court as a witness. The likelihood of getting domestic assault charges withdrawn is probably one of the most common questions a client will ask in these circumstances. The other question a client will frequently ask when charged with assault is whether the bail conditions can be changed so that the client can return home.

The simple and short answer to both the above questions is no. The Crown Attorney takes charges relating to domestic assault very seriously and unless there is no reasonable prospect of conviction and it is not in the interest of the public to proceed, then the Crown will be prepared to proceed on to trial. Where there are problems with the Crown Attorney’s case, the Crown may be prepared to agree to resolve a matter in another manner, such as a peace bond or an absolute discharge, but very rarely will the Crown Attorney agree that the charges should be withdrawn.

It is also unreasonable to expect that the Crown Attorney will agree to a change in bail so that you can return to live with your spouse or partner who you are alleged to have assaulted. Even where your spouse or partner expresses to Victim Witness or to the police that they want you to be able to return home, the Crown Attorney is not likely to consent to a bail variation. Often clients do not like hearing that the bail cannot be changed or the charges cannot be withdrawn, and this is one of the challenges lawyers face when representing someone charged with a domestic assault.

In matters involving domestic assault it is not uncommon that the entire case for the Crown will be the testimony of the complainant. In these circumstances where the only witness for the Crown Attorney is the complainant, the case to meet for the Crown is made much more difficult when the complainant indicates they do not wish to proceed with the charge or charges and they do not wish to act as a witness. Notwithstanding any challenges with respect to the Crown Attorney proving its case beyond a reasonable doubt, the fact remains that the Crown Attorney has the absolute discretion to proceed with the charges or to withdraw them because there is no reasonable prospect of conviction and it is not in the public interest to proceed with the charges,

If and when a person charged with domestic assault is released, inevitably that person’s bail will include the following conditions; that the accused not have any communication direct or indirect with the complainant, that the accused is not to attended the place of residence or employment of the complainant, and that the accused is to reside with their surety or some other address approved by the court.

Quite often criminal lawyers will have clients that are anxious to return home, and it may also be that other family members including the complainant are anxious to have them return home. In these circumstances it shouldn’t be surprising that clients will often want their matter resolved as soon as possible. In these circumstances, it is not uncommon for an accused to be willing to plead guilty to an offence of assault where there is no factual basis for entering such a plea. Criminal defence lawyers must be aware that these circumstances can arise, and therefore must be vigilant not to assist a person entering a guilty plea where to do so would be to misrepresent the court.

Charges involving domestic assault have a higher likelihood of going to trial because of the Crown Attorney’s position on domestic violence. If you charged with a domestic assault it is important you contact me right away so that I can begin working on resolving your matter as soon as possible. The sooner your matter is resolved, the sooner you might be able to return home and begin communicating with your spouse or partner.

Contact

If you have been charged with a domestic assault, contact me immediately and arrange a free consultation.

Follow the link for more information on domestic assault or read FAQs on domestic assault.

Domestic assault is term you commonly find in the media. However there is no specific offence under the Criminal Code of Canada for domestic assault. Simply put, if your partner, wife, husband, girlfriend, boyfriend makes an allegation to the police that you have assaulted them, you will not charged with domestic assault, rather you will be charged with assault. Similarly, if there is alleged to be a weapon involved in the assault then you will be charged with assault with a weapon.

However, because of the prevalence and the impact domestic violence can have on victims and other family members, assaults that are domestic in nature are treated differently from other allegations of assault. As someone who is has received education in law and social work and practices criminal law here in Toronto, I have experience with the dynamics of domestic violence and how domestic violence intersects with the criminal law.

Domestic assault includes all charges of assault where there is an intimate relationship between the accused and complainant. Therefore, our courts constitute domestic assault as including relationships between opposite and same sex partners. Domestic assault also includes those partners involved in a dating relationship and those partners who are either married or in a common law relationship.

If you are charged with assault pertaining to a domestic relationship, the immediate implication is that you will not be permitted to have any communication, direct or indirect, with your partner. The sole exception to this no communication order would be if you had children with your partner. In these circumstances, a condition may be included that you may have communicate with your party through a mutually agreed upon third party for the sole purpose of arranging access to your children.

If you were living together with your partner, then there will a condition that you will not be permitted to return to the place of residence, except possibly for one or two visits for the sole purpose of collecting clothes and other personal belongings. If you are charged with assaulting your partner, you will be required to find a new place to live and it is not uncommon that you are required to reside with your surety or some other person the court deems to be appropriate.

If you are arrested and charged with assaulting your partner, it is unlikely that you will be released from the police station. You can expect to be held for a bail hearing, and if you cannot arrange an appropriate surety right away, you may be held in custody until you are able to do so or until your matter is resolved.

The conditions outlined above can have a detrimental impact both on the relationship between the alleged victim and the accused, and the relationship between the accused and other family members, such as children. The discretion of whether to proceed with a charge involving domestic assault lies solely with the Crown Attorney. Pursuant to the Ontario Crown Policy Manuel, it will usually be in the public interest to proceed with charges involving an assault of a domestic nature, so long as there is a reasonable prospect of conviction. Furthermore, the manual states that Crown counsel should exercise caution when determining whether a charge should be withdrawn at the request of the complainant.

If you are charged with assault involving your partner, you may have to wait 6 months or more to have a trial. During this time your bail conditions remain in effect and you will not permitted to have any communication, direct or indirect, with your partner. If you and your partner have children together, child access may have to be arranged, which may take time and may result in you incurring additional costs.

Often an accused person will feel pressured into entering a plea of guilty at an early date with a view of being able to return home and resume a relationship with his or her partner. Often the accused person will be ordered to enroll in a course addressing domestic violence or anger management. This scenario creates two problems. First, the accused person may be willing to plead guilty to an offence that he or she did not commit, the Crown Attorney cannot prove beyond a reasonable doubt, or where he or she had a defence available in law. Second, the accused person may be enrolling in a domestic abuse or anger management program because he or she is compelled to or is willing to do so only with a view of resuming the relationship. The impact any such course may have on a person will no doubt be not nearly as effective in these circumstances.

A significant difficulty with the directive in the Crown Policy Manual is that it does not give a voice to the victim, and it does not necessarily consider what might be the best interests of the victim or the family. That is not to say that we should minimize domestic violence and the impact on it has on the victims of domestic assault, particularly women and children. Domestic violence is a persistent societal issue, and as members of legal profession we have a responsibility to raise awareness of domestic violence and work towards addressing this issue. However in doing there needs to be more open dialogue and discussion between the alleged victim, the Crown Attorney’s Office, the police, the accused, and other family members who are directly impacted. The answer cannot be to just proceed with the charge or charges so long as there is a reasonable prospect of conviction.

Contact Me

If you have been charged with assault relating to a domestic relationship, contact me immediately for a free consultation.

Read more about domestic assault or FAQs about domestic assault.

For more information about the Ontario Crown Policy Manual dealing with domestic violence click here.