Frequently Asked Questions
What is Domestic Assault?
Can my Spouse Drop the Charges?
What are Common Sentence for Those Convicted of Domestic Assault?
What are the Best Defences to Domestic Assault in Kitchener?
-Defence of Person
-Defence of Property
Assaulting a Peace Officer
Sexual Assault Law in Canada
Consequences of a Criminal Record
Keeping Charges Private
Travel & US Waivers
Vulnerable Sector Screening
Elements of a Crime
What is Assault?
In Canada, there is no separate criminal offence for assault. All individuals charged with committing an assault will be charged under section 266 of the Criminal Code, which is the section outlining common assault. The Code states that an individual is guilty of the offence of assault when they intentionally apply force to another individual, either directly or indirectly, without consent. Additionally, an individual is guilty of assault where they, through an act or gesture, attempt or threaten to assault another person, causing them to have the genuine belief that the accused has the present ability to carry out the threat. Finally, an individual will be guilty of assault where they, while wearing or carrying a weapon or imitation weapon, accost, impede or beg another person. This definition is quite broad and encompasses a wide variety of interactions between people.
While there is no separate offence in the Code, those accused of committing an assault in the context of a domestic relationship will generally be punished more harshly. Assault occurring in a domestic relationship is seen as an aggravating factor in a criminal case. This gives the Court a reason to sentence the accused more harshly upon conviction.
Can my Spouse Drop the Charges?
No. There is often a misconception that if the complainant in a domestic assault case wants to “drop the charges” against the accused, they have this right. While this rule stands true in parts of the United States, it does not in Canada. In Ontario, police will lay charges in domestic assault situations regardless of the wishes of the complainant. This is to protect complainants who may be being manipulated by their abuser. While this policy has been put in place to protect those who are vulnerable in society, it can, in some cases, lead to innocent individuals being charged.
Once the police have laid domestic assault charges against an individual, they cannot be taken back. Only the Crown will have the power to withdrawal the charge(s) against the accused and generally will not agree to do so unless one of two situations exist.
The Crown may agree to withdrawal the charges where they do not believe there is a reasonable prospect of convicting the accused. If the Crown does not have enough evidence to gain a conviction, they will generally withdrawal the charges so as to not waste court resources on a case that cannot be won.
The second situation where the Crown may agree to withdrawal domestic assault charge(s) is where they do not believe it is in the interests of justice to prosecute the individual. In situations where an innocent party has been charged with domestic assault, it may be possible for legal counsel to negotiate with the Crown and have the charges withdrawn at an early stage.
What are Common Sentences for Those Convicted of Domestic Assault?
The definition of criminal assault provided in the Criminal Code is quite broad, meaning a wide array of interactions can be considered assault. As a result, the sentences for those convicted of domestic assault vary significantly from one offender to the next. Assault is a hybrid offence, meaning the sentence the accused receives upon conviction will depend largely on whether the Crown elects to proceed summarily or by indictment. The Crown will proceed summarily in situations where the allegations are less serious and will proceed by indictment in cases where the allegations are more serious.
In cases where the Crown proceeds summarily, the accusations are minor and the accused does not have a criminal history, it may be possible to receive an absolute or conditional discharge. An absolute discharge means that the Court has made a finding of guilt against the accused but will not register the conviction, leaving no criminal record for the offence. When an accused is granted a conditional discharge, they are placed on probation with conditions for a period of time. Once that probation has been successfully completed the conviction will be removed from the accused’s record.
In more serious cases or where the accused is a repeat offender, they may be sentenced to a period of incarceration. In cases where the Crown proceeds summarily, the accused will face a maximum of two years less a day in prison, or a $5,000 fine or both. If the Crown proceeds by indictment, the accused will face a maximum of five years in prison.
Generally, those charged with domestic assault will be sentenced more harshly than those charged with simple assault occurring outside of a domestic relationship. The fact that an accused assaulted their intimate partner or family member will be an aggravating factor in the case which the Court may use to justify ordering a more severe sentence.
What are the Best Defences to Domestic Assault Allegations in Kitchener?
In Kitchener and all over Ontario, the defences available in cases involving domestic assault include; consent, reflex action, defence of person and defence of property. All four of these defences operate as justification for the accused’s otherwise unlawful actions.
In cases involving assault of any kind, the Crown must prove that the accused applied force, either directly or indirectly, to the complainant without their consent. If the complainant did in fact consent to the physical use of force, the accused is not guilty of a criminal offence.
To prove an assault offence, the Crown must prove that the accused intentionally applied force to the complainant. A reflex action is involuntary. This means that if an accused applied physical force to the complainant through a reflex action, the accused lacks the necessary intent to be guilty of the offence.
Defence of Person
In Canada, it is legal for an individual to use force to defend against an unlawful attack by another person. To successfully use the defence, the accused must prove that they only used the amount of force reasonably necessary to repel the attack and that they had no other options to avoid the attack other than to use force.
Defence of Property
An individual who is in peaceful possession of a piece of property may use the amount of force reasonably necessary to remove a trespasser from the property. Generally, this defence cannot be used where the accused causes injuries to the complainant.
If you have been charged with domestic assault in Kitchener, Donich Law can assist you in developing the best strategy to defend the allegations being made. We have experience defending first and second time offenders and those with no criminal history and regularly obtain favourable results. In some cases, we have been able to resolve domestic assault charges with no criminal record for our clients.
What is the Difference Between Assault and Domestic Assault?
The major difference between assault and domestic assault is that domestic assault is an assault occurring in a domestic relationship. Those who are alleged to have assaulted their domestic partner will be charged with assault and the domestic nature of the offence will be an aggravating factor in the case.
Will I go to Jail for Domestic Assault?
In some cases, yes. Those convicted of assault may in some cases be sentenced to a period of incarceration. Whether or not an individual will be sentenced to prison for domestic assault will depend on various factors including the nature and severity of the allegations, the history of the accused and any other aggravating or mitigating factors that exist.
What are the Maximum Penalties for Domestic Assault?
Domestic assault is a hybrid offence. In situations when the Crown proceeds summarily, the accused will face up to two years less a day in prison and/or a $5,000 fine. In situations where the Crown proceeds by indictment, the accused will face up to five years in prison.
Can I Change my Bail Conditions to see my Spouse?
When an individual is charged with domestic assault, they will almost always be ordered not to contact the complainant, who in many cases is the accused’s spouse. This no contact order generally remains in place until the resolution of the case, unless the accused requests a bail variation from the Court. However, unless the complainant agrees to have the bail varied to allow contact, the Court will not agree to the variation.
What Happens to First Time Domestic Assault Offenders?
In Canada, the Court generally does not sentence first time offenders to periods of incarceration unless they have been convicted of a serious crime. First time offenders charged with domestic assault may, in some cases, receive a conditional or absolute discharge, meaning the accused will not have a criminal record. In other cases, however, an accused charged with domestic assault for the first time will not be able to avoid a criminal record.
What if my Spouse Does Not Want Me Charged?
In most cases, where there are credible allegations of domestic assault, the police will lay charges even where the complainant does not want the accused charged. If the complainant is completely unwilling to cooperate with law enforcement, they may call third party witnesses to testify against the accused where possible.
What if my Spouse was Not the One Who Called the Police?
In many cases involving domestic assault, law enforcement is contacted by someone other than the complainant or accused. In many cases, neighbors hear fighting and call police. Generally, it does not matter who contacted police. Once the police arrive on the scene, they will assess the situation and determine if charges need to be laid against anyone. If a third-party contacted police, they will generally be asked to provide a statement and will be considered a witness in the case.