Individuals charged with assault or domestic assault in Toronto face potentially serious legal consequences, including imprisonment, probation, and a permanent criminal record. The circumstances of each case require careful legal analysis at an early stage.
What is Assault?
An assault, is committed, as defined in section 265(1) of the criminal code when:
(a) a person without consent of another person, applies force intentionally to that person directly or indirectly,
(b) attempts or threatens by an act or a gesture, to apply force to another person, if they have or causes that other person to believe on reasonable grounds that they have the present ability to affect their purpose or
(c) while openly wearing or carrying a weapon or an imitation where they impede another person.[1]
This definition illustrates that an assault can range from an actual act or force to a threat of using force against an individual.
In Toronto and throughout Ontario, assault charges may proceed either summarily or by indictment depending on the surrounding circumstances.
When does an Assault Constitute a ‘Domestic Assault’?
An assault becomes a domestic matter when the individuals involved are in an intimate or familial relationship. While the Criminal Code does not explicitly define ‘domestic assault’, the Police service, Crown and Courts take the matter with particular consideration.
There have been several policy changes over the years to reflect the additional resources and support to individuals involved in intimate partner violence. Majority of these changes stem from the Domestic Violence Action Plan Progress Report.[2] An example of this is the Mandatory Charging Policy, which allows police officers who believe that an individual has assaulted their partner to law a criminal charge even if the person who was assaulted does not want this to happen.[3]
Once an individual is charged, they will either be held for a Bail hearing, or released on an “Undertaking”. This decision is dependent on the severity of the altercation, and the criminal record of the accused. Regardless of the outcome, there will be conditions in place that do not allow the parties involved to communicate directly, or indirectly.[4]
The components of intimate partner violence within the legal system outline several programs and safeguards to support the accused and the complainant in these situations. Examples of these components are: Partner Assault Response Programs (PAR), specialized Crown Attorney’s with additional legal training related to domestic violence, specialized evidence gathering protocols for police, and designated Victim Witness Assistance Programs.[5]
This commitment to domestic violence solidifies the importance and urgency to obtain legal counsel who understands how to approach and represent their clients with attention and proficiency.
Domestic assault charges are routinely prosecuted with heightened scrutiny in Toronto courts. The existence of a domestic relationship may significantly affect bail conditions, resolution discussions, and sentencing considerations.
Bail, Undertakings, and Release Conditions
Following an arrest for assault or domestic assault, an accused person may be released on an undertaking or held for a bail hearing pursuant to section 515 of the Criminal Code.
In domestic matters, common release conditions include:
- No direct or indirect communication with the complainant
- Non-attendance at a shared residence
- Restrictions on firearms possession
A breach of release conditions constitutes a separate criminal offence.
Assault with a Weapon or Causing Bodily Harm
Assault with a weapon or causing bodily harm occurs when an individual
- Carries, uses, or threatens to use a weapon or an imitation thereof,
- Causes bodily harm to the complainant, or
- Chokes, suffocates, or strangles the complainant.[6]
For the purpose of the offence, a “weapon” is any object that is used to cause injury or to incapacitate a person.[7] Therefore a weapon can be a knife, a bat or a common object such as a book.
Aggravated Assault
Aggravated assault can be found in section 268(1) of the Code and is committed when an individual wounds, maims, disfigures, or endangers the life of the complainant[8]. Maims is defined as rendering a person less able to defend themselves, whereas disfigures amounts to an injury with lasting consequences, more than impacting the appearance of the person[9].
Within the conduct elements, or actus reus of aggravated assault the definition of ‘wounds’ has been constantly debated. As a result, a wound is any injury to the “continuity of the skin”.[10] This explanation is also applicable when discussing ‘serious bodily harm’[11].
Therefore, it is dependent on the facts of the case and severity of the “wound” to differentiate between assault causing bodily harm and aggravated assault.
Aggravated assault is among the most serious assault offences under the Criminal Code and carries a maximum penalty of fourteen years imprisonment.
Sentencing and Penalties for Assault Offences
Assault offences may proceed summarily or by indictment. The maximum penalties vary depending on the nature of the offence:
- Simple Assault (s.265): Up to 5 years imprisonment (indictable).
- Assault Causing Bodily Harm (s.267): Up to 10 years imprisonment.
- Aggravated Assault (s.268): Up to 14 years imprisonment.
Sentencing is influenced by:
- Degree of injury
- Use of a weapon
- Prior criminal record
- Circumstances of the offence
- Domestic context
A conviction may also result in probation, firearms prohibition orders, and a permanent criminal record.
Alternative Resolutions
In certain cases, assault charges may be resolved without a criminal conviction.
Possible outcomes include:
- Peace bonds under section 810
- Diversion programs
- Conditional discharges
- Withdrawal of charges by the Crown
The availability of such outcomes depends on the strength of the evidence and the surrounding circumstances.
Legal Representation in Assault Proceedings
Assault and domestic assault charges require careful review of disclosure, analysis of applicable statutory provisions, and strategic assessment of available defences.
Individuals facing assault charges in Toronto are advised to obtain legal counsel at the earliest opportunity.
[1] Criminal Code, R.S.C 1985, c C-46, s.265.
[2] Government of Canada. Programming Responses of Intimate Partner Violence. January 20, 2023. https://www.justice.gc.ca/eng/rp-pr/jr/ipv-vpi/p10.html.
[3] Ontario Women’s Justice Network. Ontario’s Domestic Violence Court Program. https://owjn.org/2022/09/06/ontarios-domestic-violence-court-program/.
[4] Ibid.
[5] Ibid.
[6] Criminal Code, R.S.C 1985, c C-46, s.267.
[7] Ibid, s.270.1(2).
[8] Ibid, s.268.
[9] R. v. L.(S.R.) 1992 CanLII 2836 (ON CA).
[10] R. v. Pootlass, 2019 BCCA 96 (CanLII).
[11] Ibid.