Frequently Asked Questions
How is Domestic Assault Different than Assault?
What is a No Contact Order?
Can my Spouse Drop the Charges Against me?
How to Defend an Assault or Domestic Violence Charge in Mississauga?
-Defence of Person
-Defence of Property
What are the Penalities for an Assault Conviction in Mississauga?
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 than Assault?
Under the Criminal Code, assault and domestic assault are considered the same offence. There is no separate offence for domestic assault in the Code. Those who commit an assault in the context of a domestic relationship will be charged with assault under section 266. Domestic assaults are, however, prosecuted differently than assaults occurring in other contexts.
Domestic violence has become a serious public safety issue in many parts of Ontario. As a result, the Courts have cracked down on domestic assault offences and have directed Crown counsel to prosecute these cases more vigorously. While the maximum penalties remain the same, those convicted of an assault occurring in a domestic relationship may receive more severe penalties.
What is a No Contact Order?
A no contact order strictly prohibits an accused from contacting, either directly or indirectly, the complainant in their case for any reason, at any time. Such an order is placed on virtually everyone who is charged with assault, domestic assault, or any other crime where there is a specific victim. A no contact order may also name witnesses to the alleged crime.
Such an order is generally imposed at the time the accused is released from custody following their arrest. The order will remain in place for the duration of the case or until the Court orders otherwise. An accused who defies the order may be charged with breach of recognizance and may have their bail revoked as a result.
A no contact order may also be issued during sentencing. For example, those who are sentenced to a period incarceration are often ordered not to contact the complainant or certain witnesses while in prison and/or until their sentence is complete.
The Crown may agree to vary or remove a no contact order if they believe the accused poses no risk of harm to the complainant or anyone else named in the order. If, however, the Crown believes the accused is a risk, they will refuse to alter the condition even at the complainant’s request. Where the Crown does agree to alter the condition, they will generally require that the complainant provide written consent. This consent is revokable by the complainant at any time.
an my Spouse Drop the Charges Against me?
No. It is a common misconception that the complainant in a domestic assault case may “drop” the charges against the accused. In Canada, once the police have laid charges against an individual the only party who may withdrawal the charges is the Crown.
As a general rule, the Crown will almost never agree to withdrawal charges against an accused at the request of a complainant. This is to ensure complainant’s in domestic abuse cases are not intimidated by their abuser into having the charges withdrawn.
The Crown may agree to vary or remove a no contact order in cases where they believe the accused poses no risk to the complainant. In these cases, the Crown will require written consent from the complainant indicating that they do not fear the accused and wish to resume contact. This written consent will be revokable by the complainant at any time. This means that if the complainant wishes to no longer have contact with the accused, they may revoke their consent and the no contact order will be reinstated.
How to Defend an Assault or Domestic Violence Charge in Mississauga
When defending a domestic assault charge it is important to understand what evidence the Crown has and how they might try to use it. The best defence will be tailored to the specific facts of the case and the evidence in the possession of the Crown.
Generally, there are four defences, that if successfully advanced, will result in the accused being found not guilty of assault. These defences include consent, reflex action, defence of person and defence of property.
The definition of assault as outlined in section 265(1) of the Criminal Code states that an individual is guilty of assault if they directly or indirectly apply force to another person without that person’s consent. If, however, the person to whom the force is being applied consented to that force, the accused cannot be found guilty of assault. It is important to note that as a general rule a complainant cannot consent to bodily injury.
To find an accused guilty of assault the Court must find that the accused committed the act and intended to commit the act. If the accused applied force to the complainant because of a reflex action, the intention to assault does not exist and the accused cannot be found guilty.
Defence of Person
An accused may argue self-defence in situations where they applied only the reasonable amount of force necessary to repel an attack by another person. If the accused used more force than necessary to repel the attack, they will be guilty of assault.
Defence of Property
An accused may argue defence of property where they use only the reasonable amount of force necessary to expel an intruder from their property. To use this defence, the accused must prove that they legally possessed or had a lawful property interest in the property.
What are the Penalties for an Assault Conviction in Mississauga?
The penalties for those convicted of assault may vary significantly from one offender to the next. This is the result of the broad definition of assault provided in the Criminal Code. The Court will consider several factors when determining the appropriate sentence for an offender convicted of an assault offence. These factors include whether the Crown elects summarily or by indictment, the nature and severity of the alleged offence(s), the accused’s criminal history, and any other aggravating or mitigating factors.
Those who are convicted of simple assault, which includes domestic assault, under section 266 of the Criminal Code may be sentenced to a maximum of two years less a day in prison and/or a $5,000 fine if the Crown proceeds summarily. Where the Crown elects to proceed by indictment, those who are convicted will face a maximum of five years in prison.
In most cases, however, those who are convicted of simple assault will be sentenced to far less than the maximum penalties outlined above. In cases where the allegations are minor, those who are convicted of assault may be sentenced to community service or a period of probation.
If you have been arrested for assault or domestic assault, Donich Law can assist you in navigating the criminal justice system. A large portion of our practice is devoted to defending those charged with assault, particularly in the context of a domestic relationship and we regularly obtain favourable results for our clients.
What is Assault?
An individual is guilty of assault if they directly or indirectly apply force to another individual without that individual’s consent. An individual is also guilty of assault if they threaten or attempt to apply force to another individual without that individual’s consent.
What is Domestic Assault?
Domestic assault is an assault occurring in a domestic relationship. If an individual in a domestic relationship applies force to their domestic partner, without consent, they have committed an assault.
What are the Maximum Penalties for Assault/Domestic Assault?
Depending on the nature of the assault, maximum penalties may range from two years less a day in prison and/or a $5,000 fine to up to five years in prison for simple assault. Maximum penalties for aggravated assault can range from two years less a day in prison and/or a $5,000 fine to fourteen years in prison.
What if my Partner Drops the Charges Against Me?
In Canada, the only party who may withdrawal or “drop” charges against an accused is the Crown. The Crown will almost never agree to withdrawal charges against an accused at the request of the complainant if there is a reasonable prospect of conviction.
Can I see my Kids if I have a No Contact Order?
If the no contact order specifically names your children, you must not contact them either directly or indirectly until the order has been lifted. If the order does not specifically name your children, but your children reside with your partner who is named in the order you must not contact your partner either directly or indirectly. In these situations, it may be necessary to get a family court order granting access.
Can I have my No Contact Order Removed?
In some cases, it may be possible to have a no contact order removed, however, this will depend on a number of factors. If the Crown has any reason to believe the accused poses any risk to the complainant, they will not agree to alter or remove the condition.
Can I get my Domestic Assault Charge Withdrawn?
Whether or not the Crown will agree to withdrawal a domestic assault charge will depend on a number of factors. The nature and severity of the alleged assault as well as the likelihood that the Crown can prove their case will play a large role in this decision.