How to Defend Domestic Violence and Abuse Charges

Domestic Assault is simply an Assault charge that occurs in a domestic setting. More specifically, it occurs when the Assault is carried out on a spouse, child, or another family member. It is not a separate charge from Assault but it is pursued differently and often more vigorously by the Crown prosecutor. The Crown has a set of policies that guide how it pursues cases of family violence. One of the main guiding principles for the Crown is a zero tolerance policy for Domestic Assault.

Although Domestic Assault is the same charge as Common Assault, the Crown has a zero tolerance policy towards Domestic Assaults. This has several implications in practice. An arrest is more likely to be made if police arrive at the scene of an alleged Domestic Assault. Furthermore, charges are more likely to be laid when police receive a complaint of Domestic Assault. According to police directives, when police receive a complaint of Domestic Assault, and there are reasonable and probable grounds supporting the complaint, the police must lay charges. In other words, the police cannot use their discretion to issue a caution or attempt to resolve the dispute without laying charges in cases of Domestic Assault.

Additionally, the Crown pursues Domestic Assaults more vigorously. The Crown has a “pro-prosecution” policy for cases of Domestic Assault. This means that a case of Domestic Assault that has enough evidence to support a conviction will be prosecuted. If a complainant wishes to discontinue prosecution, the Crown must consider the pressure the complainant is facing to do so, and will usually continue with the prosecution.

Another unique element to cases of Domestic Assault is that they often involve parallel civil proceedings. A finding by a court in the criminal proceeding will have an impact on the civil proceedings, as it is a binding decision on civil courts as well. For example, if there is a parallel child custody hearing, the judge in that case would have to consider a conviction of Domestic Assault and would likely order against joint or shared custody of the child.

Having a complete understanding of the Elements of the Criminal Offence, Your Rights and the Consequences associated with a Criminal Record is necessary before any legal decisions are made.

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Frequently Asked Questions

Can a Domestic Assault Charge arise between Homosexual Couples?
What are the Penalties for Domestic Assault?
What is Self-Defence?
What is a s.110 Weapons Prohibition?
What is a s.487.051 DNA Order?
Do you have to be Married to be Charged with Domestic Assault?
What types of Assault are often alleged in these types of allegations?
What type of people can find themselves facing allegations of Domestic Assault?
What is Bail and a “Bail Hearing”?
How is a Bail Hearing in cases of domestic violence different from other Bail Hearings?
What is a Promise to Appear?
What is a Recognizance?
What is an Undertaking?
What kind of Conditions can be attached to an Undertaking?
What kind of Conditions can be attached to a Recognizance?
What is a Failure to Comply with Condition of an Undertaking or Recognizance?
What are some of the Penalties Associated with a Failure to Comply?
What is a s.743.21 Non-Communication Order?
What is Bail Review?
What is a Bail Variation?
What is the difference between a Bail Variation and a Bail Review?
How can a Bail Variation be obtained?

Can a Domestic Assault Charge arise between Homosexual Couples?

Yes. Domestic Assault is simply Assault in a domestic environment. It includes Assault against a spouse, partner, or any family member.

What are the Penalties for Domestic Assault?

Since Domestic Assault is pursued under the same charges as non-domestic Assault, the possible penalties are the same.

Common Assault – If the case proceeds as an indictable offence, the maximum penalty is five years’ imprisonment. If the case proceeds as a summary conviction, the maximum penalty is a fine of up to $5000, two years less a day imprisonment, or both.

Assault with a Weapon or Causing Bodily Harm – If prosecuted as an indictable offence, the maximum penalty is 10 years’ imprisonment. If prosecuted by summary conviction, the maximum penalty is 18 months’ imprisonment.

Aggravated Assault – maximum sentence is 14 years’ imprisonment.

What is Self-Defence?

Self-defence is a possible defence or justification to the use of force. If it is successfully made out, the person will be found not guilty of the offence that he or she is charged with. According to the Criminal Code, three elements must be established for a claim of self-defence to be successful:

1. The person charged must believe on reasonable grounds that force is being used against him/her or another person or that a threat of force is being made against him/her or another person;
2. The act that constitutes the offence is committed for the purpose of defending or protecting themselves or the other person from the use or threat of force; AND
3. The act committed is reasonable in the circumstances.

The last element is the most complex. The court will consider a number of factors in determining whether the act with which the person is charged was reasonable in the circumstances. Some of these factors include:

1. The nature of the force or threat.
2. The extent to which the use of force was imminent and whether there were other means available to respond to the potential use of force.
3. The person’s role in the incident.
4. Whether any party to the incident used or threatened to use a weapon.
5. The size, age, gender and physical capabilities of the parties to the incident.
6. The nature, duration and history of any relationship between the parties to the incident, including any prior use or threat of force and the nature of that force or threat.

f.1) Any history of interaction or communication between the parties to the incident.

1. g) The nature and proportionality of the person’s response to the use or threat of force.
2. h) Whether the act committed was in response to a use or threat of force that the person knew was lawful.

Once the court considers all of these factors, and any other relevant factors, it will determine whether the accused’s act was reasonable in the circumstances and therefore whether his or her use of force was justified. If the force was reasonable, and was used in defence of oneself or another person, the accused will be found not guilty.

What is a s.110 Weapons Prohibition?

A s.110 order prohibits the person against whom it is made from possessing a firearm, crossbow, ammunition and other listed weapons. Unlike the mandatory s.109 weapons prohibitions however, a s.110 order is discretionary. This means that it is up to the court whether or not to impose such an order.

It applies where the offence is one that involves violence (used, threatened or attempted) and is not covered by s.109. S.109 usually covers more violent attacks involving weapons. As such, a s.110 order is more common in cases of Domestic Assault.

If s.110 is triggered, it is up to the court to determine whether to impose a weapons prohibition on the accused. In order to do so, the court must consider whether a weapons prohibition is in the interest of the safety of the accused or any other person. If the court determines that such an order is not necessary, it needs to give reasons for why it came to this decision. If the court does deem a s.110 order necessary, the prohibition can last for a maximum of 10 years after the person’s release from imprisonment, or if there was no imprisonment, 10 years after the person’s conviction or discharge. Once the order is made, the person generally has to forfeit his or her weapons to the Crown and is not allowed to possess any of the listed weapons for the duration of the order.

What is a s.487.051 DNA Order?

Under s.487.051 of the Criminal Code, a judge may make an order authorizing the taking of bodily substances for DNA tests from a person who has been convicted, discharged, or found guilty as a young offender of any offence included in the list of “primary designated offences”. Among the included offences are: Assault Causing Bodily Harm, Assault with a Weapon, and Aggravated Assault. A court may also make a DNA order for Common Assault, but only if the prosecutor (Crown) is seeking one.

A DNA order varies according to its specific terms. Generally, the order can authorize a peace officer to take bodily substances by: plucking individual hairs from the person, swabbing the person’s lips, tongue and inside cheeks of the mouth, or taking a blood sample.

A court may refuse to grant a DNA order in limited circumstances. The person against whom the order is sought can argue that the impact on their privacy and security of the person would be grossly disproportionate to the aim of the order. Specifically, if the intrusion on the person’s privacy and body would be so disproportionate to society’s interest in the proper administration of justice, to the extent that any concerns cannot be ameliorated by variations of the order, the court is not required to make a DNA order. The factors that a court might consider include the nature of the offense, the nature of the intrusion to the person, and the circumstances of the person who would be subject to the intrusion. However, this is often a very high standard to meet and in most cases, the balance is in the favour of making a DNA order. There is a presumption that taking a DNA sample is justified, and only unusual cases would warrant the court’s refusal.

Do you have to be Married to be Charged with Domestic Assault?

No. Domestic Assault is simply an Assault that occurs in the domestic setting – in a household or against a family member. The couple does not have to be married for the case to be pursued as a Domestic Assault.

What types of Assault are often alleged in these types of allegations?

All Assault-related offences can be alleged in cases of Domestic Assault. In situations where a household item is thrown by the accused at their spouse or partner, this may result in a charge of Assault with a Weapon. Any household item that is thrown in a domestic dispute can count as a weapon. For example, our firm has dealt with cases where women were charged with Assault with a Weapon for throwing makeup, milk cartons, handbags, and TV remotes at their spouse. We have likewise dealt with cases where men were charged with Assault with a Weapon for throwing hats, kitchen utensils, keys, and even a scarf at their spouse or partner.

What type of people can find themselves facing allegations of Domestic Assault?

Any person can find himself or herself in a situation where they face allegations of Domestic Assault. Many people who are charged do not have any prior criminal records and face this as their first offence. There are many cases of working professionals, and lawyers themselves, facing charges of Domestic Assault.

What is Bail and a “Bail Hearing”?

Bail is a way in which a person can be released from police detention and be compelled to appear in court at a later date. While there is no single type of “bail” in Canada, what we often think of as bail can take several different forms – a Recognizance, a Promise to Appear, an Undertaking.

After a person is arrested, he or she may be released from police custody or held for a bail hearing (judicial interim release hearing) within 24 hours of the arrest. If the person is released from police custody prior to a bail hearing, he or she must be released on a promise to appear, on a recognizance, an undertaking or an appearance notice. However, in most cases of Domestic Assault, the police do not release the person prior to a bail hearing. This may involve spending a night in jail.

The bail hearing determines whether the accused should be released from detention or be held in detention until the court date. At the hearing, the Crown may either consent to or oppose the release of the accused. In a Domestic Assault case, the Crown may oppose the accused’s release due to the risk to the safety of the complainant and his or her family. In deciding whether or not to oppose the release, the Crown will consider a number of factors, including – the nature of the offence, injuries to the complainant, any outstanding charges, drug or alcohol abuse problems, etc.

Where the Crown does not oppose the accused’s release, or fails to show cause for detention, the accused may be released on an Undertaking or a Recognizance. There are often conditions attached to either of these, which are discussed below.

How is a Bail Hearing in cases of domestic violence different from other Bail Hearings?

In most cases of Domestic Violence, once a person is arrested, he or she will remain in police custody until a bail hearing. According to the Criminal Code, a person who is not released form police custody must be taken to a bail hearing within 24 hours of the arrest, or as soon as practicable. This means that sometimes, the arrested person may spend a night in jail.

A bail (judicial interim release) hearing in a case of alleged Domestic Violence has different considerations than other bail hearings, and the Crown has specific policies guiding its approach to such cases. According to this policy, the safety of the complainant and his or her family is the paramount factor to consider when the Crown is deciding whether to consent to the accused’s release or not. Other factors the Crown will consider include the nature of the offence, the history of the relationship, history of the accused, the extent or presence of injuries, etc.

The Crown is often conservative in its approach to bail hearings in cases of domestic violence. When they do consent to the accused being released from custody, it is often only if the terms of the release require the accused to reside with a surety.

What is a Promise to Appear?

A Promise to Appear is one way in which a person may be released from police custody after arrest, if the police determine there is no compelling reason to hold the person for a bail hearing. A Promise to Appear requires the accused to appear in court at a specific time and place, and must be signed by the accused. Failure to appear at the time and place specified is a criminal offence that carries with it a maximum penalty of two years’ imprisonment.

Promises to Appear in cases of domestic violence are not as common as a Recognizance or Undertaking. This is because the option of a Promise to Appear is only available if a person is not held for a bail hearing after arrest. In most cases of domestic violence, the police hold the accused for a bail hearing (judicial interim release hearing). In a bail hearing, the accused can be released either on a Recognizance or Undertaking.

What is a Recognizance?

A person may be released from police custody on a Recognizance, either before a bail hearing or as a result of the hearing. A Recognizance requires the accused to appear in court on a certain date and time. It also usually includes various conditions attached to it (discussed in more detail below).

A Recognizance involves a payment of money as a way of ensuring the conditions are followed – either upfront as a deposit, or as a pledged amount to be paid in case of a breach. If the accused is released from police custody on a Recognizance prior to a bail hearing, the maximum amount attached to the Recognizance is $500. This is usually without a deposit, where the person is required to pay the amount set out if he or she breaches a condition of the Recognizance. Or, if the person does not reside in Ontario or within 200 kilometers of where he or she is in custody, the Recognizance can have an amount to be paid as a deposit. Here, the person is required to pay the money prior to release, and if the person breaches a condition subsequently, the Crown keeps the deposit.

A person can also be released on a Recognizance at a bail hearing. There are three types of Recognizance with which he or she can be released. These vary depending on whether or not there is a surety and/or a deposit attached.

Recognizance without sureties and without deposit – this type of Recognizance sets conditions and an amount of money that the accused would have to pay if he or she breaches a condition. The judge determines the amount of the recognizance, in considering a number of factors such as the accused’s financial situation, ability to pay, etc. It is the least restrictive type of Recognizance since it does not involve a surety and the accused does not have to pay a deposit to the Crown. However, in cases of Domestic Violence, the Crown is not likely to consent to releasing the accused from custody without a surety.

Recognizance with sureties and without deposit – this type of Recognizance also does not require an upfront deposit payment. Instead, it sets an amount that the accused would have to pay in the event that he or she breaches a condition of the Recognizance. Unlike the previous type of Recognizance, it requires a surety to sign the Recognizance. A surety is a person who makes an agreement with the court to take responsibility for the accused, to make sure they show up to court and do not breach the conditions of the Recognizance. The surety must agree to pay a specified amount if the accused breaches the order.

Recognizance with deposit – this option is only available if the accused does not reside in Ontario or within 200 kilometers of where he or she is in custody. The accused will have to pay a set amount of money or other valuable security upfront as a deposit. Once the case is over, and the accused has not breached his or her Recognizance, that money is returned to the accused. This option may or may not also involve a surety.

What is an Undertaking?

An Undertaking is another way in which a person in police custody or detention can be released. A basic Undertaking simply requires a person to appear in court at a specific time and place. As such, an Undertaking is generally the least restrictive form of release. However, Undertakings often come with conditions. Unlike a Recognizance, it does not require a surety, and it does not involve paying money in case the accused breaches a condition. Nevertheless, there can be a criminal penalty for breaching a condition as with a Recognizance.

If a person is released prior to a bail hearing, an Undertaking can only be required if the arrest was made with a warrant. In such a situation, the person can only be released on a Promise to Appear or a Recognizance. The Undertaking would be made as an addition to one of these two forms of release and would add conditions to the release. See below for the possible conditions attached to an Undertaking.

If a person is released through a bail hearing, they can be released on an Undertaking alone, and an attached Recognizance is not required. It is up to the justice to set the conditions of the Undertaking. At a bail hearing, a basic Undertaking with no conditions is the starting point. It is then up to the Crown to argue for more restrictive measures. In the end the justice decides which, if any conditions to attach to the release of the accused.  See below on possible conditions to an Undertaking at a bail hearing.

What kind of Conditions can be attached to an Undertaking?

As described above, an Undertaking can either be made as an addition to a Recognizance or Promise to Appear if the accused is released prior to a bail hearing. Or it can be its own form of release as the result of a bail hearing.

If an Undertaking is made as part of a release from custody prior to a bail hearing, the following are some possible conditions:

(a) to remain within a territorial jurisdiction specified in the undertaking;

(b) to notify a peace officer or another person mentioned in the undertaking of any change in his or her address, employment or occupation;

(c) to abstain from communicating, directly or indirectly, with any victim, witness or other person identified in the undertaking, or from going to a place specified in the undertaking, except in accordance with the conditions specified in the undertaking;

(d) to deposit the person’s passport with the peace officer or other person mentioned in the undertaking;

(e) to abstain from possessing a firearm and to surrender any firearm in the possession of the person and any authorization, licence or registration certificate or other document enabling that person to acquire or possess a firearm;

(f) to report at the times specified in the undertaking to a peace officer or other person designated in the undertaking;

(g) to abstain from

(i) the consumption of alcohol or other intoxicating substances, or

(ii) the consumption of drugs except in accordance with a medical prescription; and

(h) to comply with any other condition specified in the undertaking that the officer in charge considers necessary to ensure the safety and security of any victim or witness to the offence.

If an Undertaking is made as part of a bail hearing, there are several possible conditions listed in the Criminal Code that could be attached. The justice has significant discretion in ordering conditions, and there are some common conditions used in cases of Domestic Violence. These include:

• “No contact” terms.
  • Common wording is – No contact directly or indirectly with the complainant except through a mutually agreeable third-party or pursuant to a Family Court order and only for purposes of arranging and facilitating child access.
• Conditions restricting access to complainant’s children.
  • Contact with children to be exercised under the supervision of the Child Protection Agency or pursuant to the order of a court of competent jurisdiction
  • Contact with children pursuant to a Family Court order that post-dates the date of this order. OR – Contact with children pursuant to a Family Court order.
• A “no go” term restricting the accused from going within a specified distance from the complainant’s home and work place.
• Abstain from drugs and alcohol.
• Weapons prohibition.

What kind of Conditions can be attached to a Recognizance?

Conditions can be attached to a Recognizance at a bail hearing. The conditions that can be attached are the same as for an Undertaking. The justice has discretion to tailor the conditions to the specific circumstances of the case. Some common conditions in cases of Domestic Violence include:

• “No contact” terms.
  • Common wording is – No contact directly or indirectly with the complainant except through a mutually agreeable third-party or pursuant to a Family Court order and only for purposes of arranging and facilitating child access.
• Conditions restricting access to complainant’s children.
  • Contact with children to be exercised under the supervision of the child protection agency or pursuant to the order of a court of competent jurisdiction
  • Contact with children pursuant to a Family Court order that post-dates the date of this order. OR – Contact with children pursuant to a Family Court order.
• A “no go” term restricting the accused from going within a specified distance from the complainant’s home and work place.
• Abstain from drugs and alcohol.
• Weapons prohibition.

What is a Failure to Comply with Condition of an Undertaking or Recognizance?

If a person fails to comply with a condition of an Undertaking or a Recognizance, that person is guilty of a criminal offence (Criminal Code s.145). In order to be found guilty, the Crown has to prove that the accused was aware what the terms of the Recognizance or Undertaking forbade him from doing, and that he knowingly and voluntarily did that thing. Willful blindness however is not an excuse – an accused cannot deliberately decline to make inquires where he knows that he has reason to suspect a certain state of affairs exists. On the other hand, if the person is under a mistaken belief over what a condition forbids or compels him to do, this may be a defence to the breach.

What are some of the Penalties Associated with a Failure to Comply?

For both a Recognizance and an Undertaking, the failure to comply with a condition is a criminal offence. If it is prosecuted as an indictable offence, the maximum penalty is two years’ imprisonment. There is no maximum if it is prosecuted by summary conviction, but this will often result in a more lenient sentence.

If a Recognizance has money attached to it, the person will have to pay that amount if he or she breaches a condition. If there is a surety, the surety will also be liable to pay the amount specified.

What is a s.743.21 Non-Communication Order?

A s.743.21 Non-Communication Order is an order that a sentencing judge can make that prohibits the offender from communicating, directly or indirectly, with any victim, witness or other person identified in the order during the custodial period of the sentence. Unlike a non-communication condition in an Undertaking or Recognizance, a s.743.21 order comes as part of the sentence at the end of a criminal trial, not at a bail hearing. It can last only during the period while the person is serving his or her sentence in custody. Breaching a non-communication order is a criminal offence that can result in up to two years’ imprisonment.

What is Bail Review?

The court’s determination from the initial bail hearing is subject to review upon the request of the accused or prosecutor at any time before the trial. A judge reviewing the bail determination can revisit any aspect of the initial decision, including whether or not the accused should be released from custody (if they weren’t released at the bail hearing), the form of release and any conditions.

Bail reviews are only appropriate in limited circumstances. In order to be successful in a bail review, the accused must show that the justice who made the initial bail ruling made an error of law, or that there has been a material change in the accused’s circumstances that would warrant a change in the bail conditions. Furthermore, since Bail Review is like having an additional hearing, it may take several weeks before a court hears the case. But where the Crown opposes changing the conditions of the initial bail, a Bail Review is the only option available to change bail conditions.

What is a Bail Variation?

A Bail Variation is a way of changing the conditions of an initial bail decision without having a separate hearing challenging the appropriateness of the bail. A Bail Variation is obtained on the consent of the Crown. Where the Crown and the accused both consent, the Criminal Code allows for a great degree of flexibility in varying any part of a bail order. However, as with other aspects of a Domestic Violence case, the Crown has a special policy for Bail Variations.

The Crown will likely not be willing to consent to vary a condition unless the variation is supported by the requisite information, and the variation sought is realistic in the circumstances. For example, if the accused can show that curfew conditions are overly restrictive, the Crown may be willing to agree to change curfews to allow the accused to attend school or work. A common variation sought is on the no-communication condition. The Crown may allow more communication between the accused and the complainant to facilitate counseling. Such variations are limited to situations where the complainant is cooperative and consents to allowing the communication. Variations for communication conditions are often incremental in nature, and are meant to parallel progress made in counseling sessions. For more information on obtaining bail variation.

What is the difference between a Bail Variation and a Bail Review?

Bail Variation is a change in an aspect of the initial bail order where the Crown consents to the change. It does not involve a separate hearing, but simply requires that a judicial officer formalize the variation.

Bail Review, on the other hand, is a judicial challenge to the original bail order. It involves a hearing in a court before a judge. Bail Review is sought where the justice who made the original order made a mistake of law, or where there has been a material change in circumstances since the initial order was made.

Due to these factors, a Bail Variation is often the more efficient and cheaper option. However, Bail Review is the only option available where the Crown does not consent to changing the terms of the initial order.

How can a Bail Variation be obtained?

Bail variation may be sought by approaching the Crown with a proposal for varying a term of the bail, along with concrete proof and information supporting the proposal. There are several situations in which the Crown may grant a Bail Variation. Most commonly, these arise where the complainant is cooperative and supports a Bail Variation. In such cases, the crown may grant variations to allow for the reconciliation process, but they are often contingent on success in a counseling program.

One common situation in which a Bail Variation is possible is through a guilty plea. In such cases, the accused admits guilt and commits to a treatment program. In turn, the Crown will seek to hold off the sentencing until the defendant has completed the program, and may give a more lenient sentence depending on progress in the program. The Crown will often grant full contact between the defendant and the complainant if the complainant provides “written, revocable consent” and files it with the Crown office. The complainant may revoke this consent at any time, verbally, and without notice to the office with which he or she filed the consent.

The other possibility for bail variation is where the complainant is cooperative and wants to seek a resolution to the charges. It must be noted that a complainant cannot simply seek to have the charges ‘dropped’. The complainant does not press charges in the first place; it is the prosecutor (Crown) who pursues the charges and it is their decision on how and whether to pursue them. Furthermore, Crown policy is generally cautious of withdrawing charges in a Domestic Assault case even where the accused and the complainant want it.

Nevertheless, a complainant who is cooperative and who wants to seek a resolution to the charges may agree to have counseling sessions with the accused. When pursuing this resolution, the Crown may grant incremental bail variations to facilitate the reconciliation process. First, there would be a variation to allow for some counseling sessions. If the counseling sessions are successful, and a report from the counselor corroborates this, further variations might be granted that incrementally increase communication. For example, first telephone communication may be allowed, followed by meetings in the presence of a third party, and finally unrestricted communication. If parties successfully complete a counseling program, and counselor reports support this, the Crown may be willing to withdraw charges or grant a peace bond. In many cases the Crown will still not be willing to grant such a resolution. Nevertheless, if the case goes to trial and the accused is found guilty, the successful completion of a counseling program in the meantime would allow a more lenient sentence, such as an absolute or conditional discharge.

In many cases however, the complainant will not be cooperative. Bail variations are still possible but they are more difficult in such cases. The Crown will seek input from the complainant for requests for variation made by the accused. The Crown may consent to change a condition if there are related family law proceedings and the bail order is inconsistent with an agreement or order made by a family law court. Other situations where the Crown may consent is if the bail terms are so onerous as to prevent the accused from attending work or school, such as with a curfew.