Frequently Asked Questions
What if the Couple in a Domestic Assault case have Children in Brampton?
Assault charges almost always result in a no contact order. The child’s safety always comes first. If the child happened to be a part of the assault, then the no contact order would include the child. If the no contact order only exists between the parents, the accused may ask for access to children through a third party in a bail hearing. This process must be followed as this is considered asking for an exception to the no contact order. The third party must be neutral and mutually agreed upon, like a grandparent.
Common Defences to Assault in Brampton
A common defence to assault would be consent. The Criminal Code states that assault happens without consent; if the person consented to the touching, it would be a valid defence. However, this only applies to simple assault charges, as no one can consent to bodily harm.
Another defence would be the defence of reflex action. Sometimes more colloquially known as a knee-jerk reaction, a violent reflex does not necessarily mean an assault conviction. For example, if a person’s reflex to being startled is throwing their fist out, and they accidentally punch another; reflex would be an applicable defence.
Unlike in America, Canada has no “stand your ground” provision. When self-defence is used as a defence, a trial must commence. In Canada, the accused is allowed to use an amount of force necessary to repel the attack—no more, no less. As domestic assault has a multitude of relationship factors, the court will examine both parties and hear both sides.
Provided that the original intention was not death or bodily harm, the Court will consider the accused’s role in the incident, the history of the parties, and gender/physical capabilities of both parties. A major factor in the Court’s decision is whether the force in defence is proportional. For example, causing potential death (perhaps via a gun), is not a proportional reaction to a threat. In addition, factors such as intent, the person’s role in the incident and gender/physical abilities are taken into consideration. These principles also apply to the defence of defence of property; if the accused has lawful possession of the property or special property interest.
Simultaneous Family and Criminal Law Proceedings in Brampton
The two areas of criminal law and family law often intersect; one court will look to the other court for their respective issues. The Family Court has more authority regarding the access to children, while the Criminal Court can determine whether the accused is dangerous or not. Access to the child is often granted through a Family Court order. If a no contact order is in place, the court may allow an except as per the family court order. Cases can range from having full access, visits, supervised visits, or visits at a governmental center.
Can the Police Lie to You?
Yes, the police can lie. During an investigation of a crime, the police may go undercover. Even after detainment, the police will not always be truthful. They may lie about things like DNA evidence or witness evidence. For example, the police may attempt to convince the suspect that they have evidence to get a confession. If the suspect has been detained or arrested, the police must reveal the reason for the arrest, but can omit certain truths. They may also use other tactics to goad the suspect into speaking. When detained by the police or interacting with them, it is best to remain silent.
There is one exception to the rule: the police cannot lie about rights. Any rights codified in the Charter of Rights and Freedoms, the police cannot lie about. This includes the right to remain silent and the right to counsel. Upon police involvement and investigation, it is important to retain a lawyer as soon as possible.
How long does a Criminal Assault Case take vs. Family Law Proceedings?
In the Canadian Charter of Rights and Freedoms, section 11(b) ensures the right to be tried at a reasonable time. In the Supreme Court of Canada case of R. v. Jordan,  1 S.C.R. 631, the Court placed great importance on trial within a reasonable time, as it affects the liberty interests of the accused. It would be unconstitutional to force someone to live in either pre-trial custody or under bail conditions for an unreasonable amount of time. A long-delayed trial also causes stress, anxiety, and stigma for the accused. As such, criminal trials in provincial courts must not be delayed past 18 months; and must not be delayed past 30 months for cases for the superior court. However, there is no such timeline for family court proceedings.
When charges are laid in a domestic violence situation, family law can intersect with criminal. When an accused is arrested for a domestic violence case, bail conditions will include a no contact order for the persons involved. This may involve the spouse or child. The no contact order can last for years, and this may cause the accused to be unable to see their family or child(ren). To lift the no contact order, an order from the Family Court is often needed. In some circumstances, the family proceedings may outlast the criminal trial. After a conviction in criminal court, the conviction can then be taken into family court, which will be factored in for their final decision.