A domestic relationship is a personal or legal relationship, including but not limited to marriage, usually involving individuals who live together and share a mutual domestic life. A domestic relationship implies intimacy between partners, and may or may not include children within the relationship. Police take reports of domestic assault very seriously as they can easily escalate and become increasingly violent and may put children at risk of injury or even death. Domestic violence is looked upon with great disfavour in Canada, particularly because it creates a power imbalance in a domestic relationship and it can be very difficult for the weaker partner to remove themselves from a potentially violent situation.
Under the Criminal Code of Canada, there is no law that specifically deals with domestic violence or domestic assault. However, there are several laws pertaining to assault that are commonly applied in domestic violence situations, notably the following:
- Uttering threats to cause bodily harm
- Assault (either physically or by way of a threatening action)
- Assault with a weapon or causing bodily harm
- Aggravated assault
- Sexual assault or sexual assault with a weapon
- Aggravated sexual assault
- Homicide, including murder, manslaughter and infanticide
In Ontario, the Child and Family Services Act also deals with child-specific offences such as sexual abuse of children accompanying similar provisions in the Criminal Code of Canada.
When police receive a report of a domestic assault, they assess the situation based on the statements of involved parties, including the alleged victim, and then they make a decision on laying charges. As well as witness testimony, physical evidence of injuries to the victim and a history of alleged assault are some of the other forms of evidence that police consider in their determination if there are reasonable grounds to believe an offence has been committed. It is not the decision of the complainant to lay a charge of assault; this decision is made entirely by law enforcement. However, if the alleged victim decides that they don’t wish to give evidence or testify against their partner, there may not be sufficient evidence for the police to prove the charge.
Keep in mind that even shoving a person or pushing them to the ground may be grounds for an assault charge. Although the sentencing in such cases may be fairly minor, a conviction will result in a criminal record and will likely cause a breakdown in the domestic relationship, including with the alleged assailant’s children who may subsequently have limited access, if any, to one of their parents.
Punishment and Penalties
If police decide to lay charges, the accused person will normally be held overnight in jail and then be brought to a bail hearing the next day. If you are being held on a serious assault charge or have a criminal conviction for assaulting the same person, the Crown will likely hold you in jail until the case is settled. It will be necessary to hire a lawyer at this early stage if it is your intention to release. If you are released on bail until the trial date, you will almost always be required to have no contact with the alleged victim.
After the police have laid domestic assault charges, they may go ahead with a trial even if the complainant does not want them to do so. A witness who does not wish to testify, including the victim of an assault, may be subpoenaed by the prosecution and if they do not show up, they may be brought to court by police. Of course, the prosecution always prefers to convince a witness to willingly appear, since a reluctant or hostile witness may not help their case.
Depending on the perceived severity of a domestic assault charge and the circumstances surrounding the alleged assault, the potential punishment and sentencing can vary substantially. For more serious crimes including aggravated assault, the maximum sentencing is 14 years in jail and this charge is tried only as an indictable offence. In the case of lesser assault charges, the Crown has the option to try them as a summary conviction offence generally involving less severe penalties, or as an indictable offence. If the charge is assault causing bodily harm, for example, the maximum sentence for an indictable offence is 10 years, versus a maximum of 1 ½ years if tried as a summary conviction offence.
A convicted person may be sentenced to probation and no jail time in cases where the assault was determined to be less serious, particularly if the alleged offender has no previous criminal convictions.
If you have been charged with domestic assault, your bail conditions will likely prohibit you from seeing your partner and/or children. If the alleged assault had nothing to do with your children, you may be granted access to them under some circumstances, and your lawyer can help you apply for a change in your bail conditions.
If you are convicted on any domestic assault charge, whether or not sentencing includes jail time, you will in most instances have a criminal record. A criminal record has many potential negative effects on a person’s future life, such as making it more difficult to get a job, difficulty travelling, being labeled in future interactions with law enforcement, and so on. This is one of many reasons why it is important to develop a strong defence and vigorously fight any domestic assault charges.
Some of the defence strategies that may be utilized to convince the Crown to have the charges dropped, or at least reduced, include: showing that the incident was very minor and is uncharacteristic for the accused; alcohol or behaviour counselling voluntarily taken by the accused; presenting strong character references illustrating, for example, that the accused is a law abiding citizen with no history of violence; and/or when the alleged victim speaks on behalf of the accused, ideally, with hope for a future positive relationship. The process to have the charges withdrawn may take up to a year.
Having a charge withdrawn or obtaining an acquittal is the best case scenario. However, the fact that the case was not withdrawn does not mean that a strong defence cannot achieve a finding of ‘not guilty’ when your case goes to trial. There are many factors influencing the decision to advance a case to trial, including human factors such as individual differences between Crown prosecutors in terms of the cases they wish to pursue. However, it will be the judge (in cases tried by summary conviction), or the judge or jury (for indictable offences) who ultimately decide your case, not the prosecution, and the onus is on the Crown to prove your guilt beyond reasonable doubt. If you have been detained or arrested on a domestic assault charge, call the highly experienced criminal defence lawyers at Ted Yoannou Criminal Law for unparalleled representation.