What is Domestic Assault?
There is no specific offence of domestic assault in the Criminal Code of Canada. Domestic assault is included within the sections of the Criminal Code dealing with various types of assaults. Simply put, domestic assault is an alleged assault that occurs within the context of a domestic relationship.
What is a Domestic Relationship?
A domestic relationship can be a relationship between two people of the opposite sex or two people of the same sex. What is important is that two people are engaged in an intimate relationship, either as boyfriend/girlfriend, common law partners, or spouses.
Why are charges of Domestic Assault taken so serious?
Allegation of domestic assault are taken very serious by the police, the Crown Attorney’s office and our courts because of; (1) the prevalence of domestic abuse in society, (2) the power imbalances it creates, particularly in relationships involving men abusing women, (3) the impact it can have on any children living in the home, and (4) the risk of the violence escalating if the abuse is not dealt with in a timely and appropriate manner.
What Happens when the Police are called to an Alleged Domestic Assault?
The police will investigate the allegation of domestic assault by interviewing the alleged victim, the accused and any other witnesses. After investigating, if the police have reasonable grounds to believe an offence has occurred, the accused person will be arrested and most likely held for a bail hearing.
If the victim has suffered any injuries then these injuries will be photographed and the victim may be taken to hospital if required. In some circumstances the police may have the victim attend the police station to make a formal statement.
The police will assess whether there are any safety issues for the victim and will put the victim in contact with the Victim Witness Assistance Program. If the alleged victim has children then the police will contact to the Children’s Aid Society and the CAS may conduct their own investigation or simply offer to provide support for the victim.
Do the Police always lay charges when an Allegation of Domestic Assault is made?
Allegations of domestic assault are taken very seriously by the police and by our courts, and because of this the police will charge an individual anytime the police have reasonable grounds to believe an assault has occurred.
When do the Police have Reasonable Grounds to lay a charge for Domestic Assault?
The test for whether there are reasonable grounds to lay a charge is whether a prudent, cautious and ordinary person, when given a particular set of facts, would have reason to believe that an offence has been committed. In forming reasonable grounds the police may rely upon a witness statement, any apparent injuries to the victim, any other damage relating to the alleged assault, the information the police from 911 dispatch, etc. Ultimately the police must have more than mere suspicion that an assault has occurred.
My bail conditions won’t allow me to return home or see my children, what can I do?
You can either get the Crown Attorney to consent to a bail variation or bring an application to have your bail varied. In cases involving an allegation of domestic assault, it is very unlikely that you will get your bail conditions varied so that you can return home or have contact with your spouse/partner/boyfriend/girlfriend. Only if you agree to enter into the Early Intervention Program and there are no safety issues will the Crown Attorney agree change your bail to allow you to have contact with your partner and return home.
You have a much better chance of getting your bail conditions changed so that you can have access to your children. If you have been charged with domestic assault and you and your partner have children together, you should inform your lawyer, the police and the court prior to you being released so that a condition can be included in your original bail that you be permitted access to your children. For more information on changing your bail conditions click here.
What is the Early Intervention Program?
The Early Intervention Program, often referred to as PAR (Partner Assault Response program) is a 14 session program that provides counselling on relationships, domestic violence and anger management. In many cases if the person agrees to enter the Early Intervention program the Crown Attorney will agree to a bail variation which would allow the person to have contact with their spouse/partner, provided the spouse/partner gives written revocable consent to have contact. While in many circumstances a person is required to enter a guilty plea prior to entering the program and sentencing is suspended until the person has completed the program, there are some occasions where a guilty plea is not required such as where the person enters into a peace bond.
Once the person has successfully completed the program the Crown Attorney will often ask that the charge be withdrawn, the person enter into a peace bond, or the judge grant a conditional or absolute discharge.
What does Written Revocable Consent mean?
Where there is a condition in your bail, peace bond, or probation order that you are not to have any contact with your spouse/partner unless he or she provides written revocable consent, this means that your spouse/partner can provide a written letter to the police which states that they wish to resume contact with you. You cannot have any contact with your spouse/partner until the police have provided you with a copy of that letter. You should carry a copy of that letter with you at all times. If your spouse/partner wishes, they can revoke their consent at any time by going to the police.
If my Spouse/Partner/Boyfriend/Girlfriend doesn’t show up for court, will the charges be dropped?
No. The Crown Attorney can subpoena the alleged victim and force them to attend court and testify. If the victim refuses to attend court, the Crown Attorney can then request that a warrant be issued for their arrest. Where a victim has given a signed statement or made a statement under oath, the Crown Attorney can still use this evidence at trial if the victim changes his or her story.
How do I defend myself against a Domestic assault charge?
Domestic assault charges that go to trial are often very short trials and only involve a couple of witnesses. The Crown Attorney will usually only call the alleged victim and one or two police officers. Defence counsel will usually either call no witnesses or only call his or her client. In cases where the only the witnesses are the victim and the accused, the judge will decide the case based upon the credibility of these witnesses. Follow the link for more information on Domestic Assault Trials.
In cases where a false allegation of assault has been made, the complainant’s motives behind having you charged are important and can impact the complainant credibility at trial. There are occasions where one spouse/partner will turn family court proceedings into criminal proceedings with the view of improving their position in family court.
Can I be Deported if I am charged with Domestic Assault?
You will not be deported if you are charged with domestic assault. Whether you will be at risk for being deported will be dependent upon what type of sentence you receive if you are convicted. Read more about how a criminal record can impact your immigration status.
What is the Victim Witness Assistance Program?
The Victim Witness Assistance Program is intended to provide support to those individuals who find themselves involved in our criminal justice system as a result of being a victim of crime. The Victim Witness Assistance Program will often become involved with victims of assault and as a result the program workers have significant contact with alleged victims of domestic assault.
The services the program provides are free. Program workers connect victims with other resources in the community, relay information from the victim to the Crown Attorney and vice versa, will sit with victims prior to trial commencing and sit in the courtroom while the victim is providing testimony.
I called the Police but I didn’t want to get my Spouse/Partner/ Boyfriend/Girlfriend to get charged. How do I get the Police to drop the charge?
Once a charge has been laid the police do not have any authority to drop the charge. It is only the Crown Attorney who can request to the court that the charge be withdrawn. In circumstances involving an allegation of domestic assault the Crown Attorney will exercise caution when an alleged victim requests that the charge be withdrawn. Follow the link to read more about getting domestic assault charges withdrawn.
I have been charged with a Domestic Assault. What should I do?
Domestic assaults charges are taken very seriously by our courts. You should contact a criminal defence lawyer immediately so that the lawyer can begin working on your case right away.
If you have been charged with a domestic assault call me or email me today. I will meet with you free of charge for an initial consultation.