Domestic assault is not a separate and distinct offence under the Criminal Code of Canada. Rather, domestic assaults fall within the various categories of assault, including assault with a weapon, aggravated assault, assault causing bodily harm and sexually related assaults. However, because of the prevalence and seriousness nature of domestic assaults, as well as the fact that the Crown Attorney takes domestic assaults very seriously, it is helpful to address domestic assaults separate from other assaults.
Domestic assault includes all charges of assault where there is an intimate relationship between the accused and complainant. Thus, domestic assault includes relationships between opposite and same sex partners, and includes those partners involved in a dating relationship, as well as those partners who are either married or in a common law relationship.
Domestic assaults are taken very seriously by the police, our courts and the Crown Attorney. When the police attend a home where a husband/wife, spouse, partner, or boyfriend/girlfriend has made an allegation of domestic assault, you can expect that the police will lay a criminal charge. Read about Falsely Accused of Domestic Assault.
In circumstances where you are charged with one or more domestic assaults, you can expect that the police will not release on your own recognizance, and that you will be held for a bail hearing. If you are granted bail, then you can also expect that you will have to abide by several conditions, including that you are not to have any contact direct or indirect with the person you are alleged to have assaulted, and that you are not to reside with that person. This means that you will have to make arrangements to live at another place of residence before you will be granted bail. There may also be a condition that you reside with the person who is acting as a surety on your bail. There will also be a condition that you will not be permitted to attend at the victim’s place of residence or place of employment.
The Crown Attorney also takes very seriously charges of domestic assault. The Crown Attorney is mandated by policy directives which limit the Crown Attorney’s discretion when determining whether to proceed with charges involving domestic assault. More specifically, pursuant to the Ontario Crown Policy Manuel, it will usually be in the public interest to proceed with charges involving domestic assault, 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.
Where you are charged with a domestic assault and your spouse or partner has communicated to the police or to Victim Witness Services that they do not wish to proceed with the charges and they want to continue a relationship, do not expect that the Crown Attorney will withdraw the charge. Even where your spouse or partner tells the police that they will not attend court or that they do not want to be called as a witness to give evidence, you should know that in circumstances of an alleged domestic assault, your spouse or partner is a competent and compellable witness for the Crown, and therefore there is no spousal privilege. Read more about Getting Domestic Assault Charges Withdrawn.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.