Frequently Asked Questions
How is Domestic Assault Different from Regular Assault?
How will Domestic Assault Charges Impact my Family?
What are Common Defences to Domestic assault Charges in Huntsville?
-Defence of Person
-Defence of Property
What are Common Sentences for Domestic Assault Charges in Huntsville?
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
How is Domestic Assault Different from Regular Assault?
In Canada, domestic assault is not a standalone offence. Instead, those who commit an assault in the context of a domestic relationship will be charged with assault under section 266 of the Criminal Code. If a weapon is involved or the complainant is injured, the accused will be charged with assault with a weapon or causing bodily harm under section 267 of the Criminal Code. If the complainant is maimed, disfigured, wounded or their life is endangered by the actions of the accused, the accused will be charged with aggravated assault under section 268 of the Criminal Code.
An individual may be charged with assault if they make unwanted contact of any kind with their intimate partner. This is the case regardless of whether or not the couple is legally married. While there is no separate offence in the Code for domestic violence, when an assault occurs in the context of a domestic relationship the assault charge will often be prosecuted more vigorously than other assault cases.
How will a Domestic Assault Charge Impact my Family?
Having one member of a family charged with a domestic assault offence can seriously complicate family life. When an individual is charged with an assault occurring in a domestic relationship, they will be issued a no contact order.
A no contact order prohibits the accused from having any contact, either directly or in-directly, with the complainant. This is true even where the accused and complainant are legally married and reside at the same address. This no contact order will remain in place until the matter has resolved or until the Court agrees to vary the condition. In many cases, the Crown may be reluctant to agree to vary a no contact order condition to allow the accused to return to the family home, even where the complainant consents. If the Crown can be convinced that the accused poses no risk to the complainant, they may agree to vary the condition.
In most cases, if the Court does agree to vary the no contact order condition, the complainant will be asked to provide written revokable consent. This means that the complainant must provide their consent in writing to have the no contact order removed or varied. This consent is revokable by the complainant at any time if they feel as though they no longer wish to have contact with the accused.
A no contact order can also complicate an accused’s ability to access children shared with the complainant. Where there are allegations of abuse inside a home where child resides, the Children’s Aid Society may also become involved. Donich Law has experience negotiating with the Crown as well as with the Children’s Aid Society to reunite families by having no contact orders varied or removed.
What are Common Defences to Domestic Assault Charges in Huntsville?
When determining the correct defence to use in a domestic assault case it is important to first understand the allegations and what evidence the Crown has in their possession. The best defence will be tailored to address the specific allegations and undermine the Crown’s evidence.
Four defences commonly used to defend against domestic assault charges are defence of person, defence of property, consent, and reflex action. Each of these defences may only be used in a narrow set of circumstances where the facts of the case align with the necessary components of the defence.
Defence of Person
One of the most commonly used defences in assault cases is defence of person. In Canada, a person has the right to use only the amount of force reasonably necessary to repel an attack from another person. This means that an individual may use force to stop another person from attacking them, including their intimate partner. If injuries occur as a result of excessive force being used in repelling the attack, the defence will fail, and the accused will be found guilty of assault.
Defence of Property
An individual has the right to use only the amount of force reasonably necessary to expel an intruder from their property. To use this defence the accused must be in peaceful possession of the property, meaning they had a legal right to be there. The accused must demonstrate to the Court that they used only the amount of force reasonably necessary.
If an individual accused of assault can prove to the Court that the complainant consented to the physical contact, the accused cannot be convicted of assault. By definition, an assault is the unwanted application of force to another person.
For the Court to find an accused guilty of assault, the Crown must prove beyond a reasonable doubt that the accused intended to assault the complainant. If the accused lacked such intent because the physical contact was made because of a reflex action, the accused cannot be convicted.
What are Common Sentences for Domestic Assault in Huntsville?
Domestic assault is considered a serious public safety issue in many parts of Ontario. As a result, Crown attorneys in Huntsville and throughout Ontario have adopted a tough approach to prosecuting such offences. As a general rule, domestic assault cases are prosecuted more aggressively than other assault cases.
Sentences for those convicted of domestic assault can vary significantly from one offender to the next. The severity of the punishment imposed on the offender will depend on several factors including the nature and severity of the allegations, the offence(s) charged, any injuries to the complainant, the accused’s criminal history and any other mitigating or aggravating factors.
An offender who is convicted of assault under section 266 may be sentenced to a maximum of two years less a day in prison and/or up to a $5,000 fine where the Crown proceeds summarily. Where the Crown proceeds by indictment an accused could face up to five years in prison if convicted.
In many cases however, an offender is sentenced to far less than the maximum penalty. Depending on the factors listed above, an accused may be granted a discharge, may be offered a peace bond, or may be sentenced to probation or community service rather than a term of imprisonment.
If you have been charged with domestic assault in Huntsville, Donich Law can assist you in defending your case. We have experience defending a wide variety of domestic assault cases and regularly achieve favourable results for our clients.
How is Domestic Assault Different from Other Assaults?
There is no standalone offence in the Criminal Code for domestic assault. Those who commit an assault on their domestic partner will be charged with assault under s. 266 of the Criminal Code. The main difference between the two is how the offences are prosecuted. Crown attorneys generally prosecute domestic assault charges more vigorously than other assault charges.
Is Domestic Assault Prosecuted Differently than Regular Assaults?
Yes. Domestic assault is considered a serious public safety issue in many parts of Ontario. As a result, Crown attorneys across the province have received practice directions instructing them to prosecute domestic assault cases more vigorously than other assault cases.
Can I get a Peace Bond for Domestic Assault?
In some cases, yes. In situations where the allegations are minor and no injuries resulted from the alleged assault, a peace bond may be appropriate.
Will I go to Jail if I am Convicted of Domestic Assault?
In some cases, yes. Whether or not an offender will be sentenced to a period of incarceration will depend on the nature and severity of the allegations including the severity of any injuries sustained by the victim. The offender’s criminal history may also impact their sentence as well as any other aggravating or mitigating factors relevant in the case.
What if the Complainant was not the one to Call the Police?
It is not uncommon for a neighbor or another third party to witness an altercation between a domestic couple and contact police. When police arrive, if they believe a crime has been committed, they will arrest the perpetrator and lay charges. The police may lay charges regardless of who initially contacted the police, even if the alleged victim is uncooperative when they arrive.
What if I have been Convicted of Domestic Assault in the Past?
If you have been convicted of domestic assault in the past and have been arrested and charged again, it is likely that your past conviction will negatively impact the outcome of your current charge(s). Having a previous criminal record may cause the Crown to take a harsher position on the case and may result in a more severe penalty upon conviction.
Can my Partner Drop the Charges Against Me?
No. It is a common misconception that the complainant in a domestic violence case can drop the charges against the accused. Once charges have been laid, the only person who has the power to withdrawal them is the Crown. In almost all cases, the Crown will not agree to withdrawal charges against an accused at the request of the complainant.