FIRST OFFENDER? DEFEND DOMESTIC CHARGES IN NEWMARKET.  416-DEFENCE.

Domestic assault related offences are of the most common offences before the Court in York Region and across Ontario. Being charged with a domestic assault offence can be an unsettling and confusing experience. In some cases, an individual will call the police for help, only to have themselves or their partner arrested and charged with a criminal offence. In almost all cases, an accused person will be ordered not to contact their intimate partner until the conclusion of their case. This can leave families split up for lengthy periods of time.

Donich Law has experience defending individuals from all walks of life who have been charged with domestic assault. We have experience negotiating with Crown attorneys for favourable bail conditions for those who are have just been arrested and charged with a domestic assault offence. Our Firm also has extensive experience negotiating with Crowns to have defendants bail conditions altered to allow defendants to return home and have contact with their domestic partner.

In 2021, the Firm successfully defended an individual charged with assault with a weapon and simple assault R. v. J.D. [2021]. The accused allegedly assaulted his domestic partner while brandishing a kitchen knife. Once arrested, the accused was ordered not to contact the complainant. Wishing to restore contact, the complainant hired legal counsel to assist her. The complainant’s independent legal counsel presented a united defence with the Firm. The charges against the accused were ultimately dropped at the request of the Crown.

In early 2019, the Firm resolved an assault causing bodily harm charge without a criminal record in its R. v. Z.C. [2019].

In 2018, the Firm secured the withdrawal of all charges in R. v. E. T. [2018]. The defendant was charged with one count of assault and four counts of assault with a weapon and the complainant was a ten-year-old child. In 2017, the Firm secured the withdrawal of an assault with a weapon charge in R. v. W.V. [2017]. In that case a provincial healthcare employee was charged after throwing a burnt pizza at her intimate partner, causing lacerations to his head.

In 2016, the Firm secured the withdrawal of an assault with a weapon charge in R. v. P.S. [2016] after our client was accused of throwing household items at her spouse. In 2015, the Firm secured the withdrawal of all charges against our client, including an assault with a weapon. In that case, a City of Toronto employee was arrested and charged after throwing a set of keys at his intimate partner during a heated argument.

In 2014, the Firm secured the full withdrawal of all charges in R. v. E.T. [2014]. In that case, a financial services employee was arrested and charged with domestic assault after getting into a physical altercation with their spouse.

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

What is Domestic Assault?
Common ways People are Charged with Domestic Assault in Newmarket
What are some Commonly used Defences to Domestic Assault in Newmarket?
-Defence of Property
-Defence of Person
-Defence of Consent
-Defence of Reflex Action
What are the Possible Penalties if I am Convicted of Domestic Assault in Newmarket?

Additional Resources

Assault
Assaulting a Peace Officer
Sexual Assault Law in Canada
Consequences of a Criminal Record
Domestic Abuse
First Offenders
Immigration Consequences
Keeping Charges Private
Travel & US Waivers
Vulnerable Sector Screening
Elements of a Crime
Your Rights

What is Domestic Assault?

Domestic assault is an assault occurring in an intimate partner relationship. While there is no separate offence in the Criminal Code for domestic assault, assaults occurring in intimate partner relationships are treated much differently than other assault offences. Domestic abuse is seen as a serious public safety issue in Ontario. As a result, assaults occurring in a domestic relationship will be investigated and prosecuted aggressively.

Common ways People are Charged with Domestic Assault in Newmarket

An individual may be charged with an assault occurring in a domestic partner relationship in a wide variety of circumstances. Generally, a domestic assault charge will be laid in one of two ways; first, where the police attend the scene of the alleged altercation and second, where the complainant attends the police station and makes a statement to police regarding an alleged assault.

In the first scenario, domestic assault charges may be laid where the police attend a residence or other location after receiving a call about a domestic dispute. In some cases, a member of the household will have called law enforcement and in other situations a third-party witness such as a neighbor may have called. When the police arrive at the scene, they will analyse the situation to determine if charges should be laid. Police are given considerable discretion regarding whether or not to lay charges. They will interview the parties present and then make arrests as they see fit. In some cases, even where both partners insist no assault occurred, if there is evidence to the contrary, police may exercise their discretion and lay charges.

In the second scenario, charges may be laid after the complainant attends the police station and makes a statement to the police regarding an assault. In these situations, the complainant may have left the scene of the alleged assault on their own an attended the police at a later time. In other scenarios the complainant may wait some time before making the decision to go to police about an alleged assault. In these situations, the police will generally contact the accused after the complainant has made their statement and will make an arrest if they feel the accusations are credible.

What are some Commonly used Defences to Domestic Assault in Newmarket?

For an individual who has been charged with assault, and where it has been proven that the accused person did in fact apply force or threaten to apply force to the complainant without their consent, there are four defences that may be utilized. These defences include; defence of property, defence of person, consent and reflex action. Essentially, these defences operate as justifications to the otherwise unlawful application of force.

Defence of Property

In domestic assault cases, a defence sometimes used is defence of property. Where an individual has lawful possession of a piece of property, they have the legal right to use the amount of force reasonably necessary to protect that property against an intruder. In domestic assault situations, where one partner owns property and the other partner refuses to leave and an assault takes place, the accused partner may be able to utilize the defence of defence of property to justify their use of force. It is important to note that only a reasonable amount of force is permitted. If injuries occurred to the victim, it is unlikely that this defence will be accepted by the Court.

Defence of Person

Defence of person is likely the most commonly used of these defences in domestic assault cases. Under Canadian law, an individual is permitted to use the amount of force reasonably necessary to repel an attack by another individual. Alternatively, an individual may also use the amount of force reasonably necessary to repel an attack by another individual on a third party. For example, if an individual saw another individual being attacked, they would be legally permitted to use the amount of force reasonably necessary to stop the attack. It is important to note that if injuries are caused to the complainant, there is less likelihood that the Court will accept this defence.

Often in domestic violence cases, individuals will argue that they were defending themselves from the complainant, and that the complainant was actually the aggressor in the situation. This can lead to a he-said-she-said situation, in which case the accused may need to present evidence to bolster their defence.

Defence of Consent

The defence of consent is used less frequently in domestic assault cases. Under Canadian law, an individual is guilty of the offence of assault when they apply force to another individual without their consent. If, however, the complainant did consent to the application of force, the accused is not guilty of an offence. It should be noted that an individual cannot consent to injuries, so if injuries were caused to the complainant as a result of the consensual assault, the accused will likely be found guilty of an assault offence.

Defence of Reflex Action

The defence of reflex action may be used in situations where an individual, through a reflex action, applies force to another individual without their consent. To be guilty of the offence of assault, an individual must have intended to assault the other person. Since a reflex action is unintentional, an individual will generally not be held criminally liable for such an action. This defence may be difficult to prove without independent evidence such as a third-party witness. To successfully utilize this defence in a domestic assault case, it is likely that the complainant or a third-party witness would be required to testify to bolster the defences argument.

Aside from these four defences, many individuals charged with domestic assault will simply deny the allegations. In many cases, domestic assault cases devolve into he-said-she-said situations. Due to the burden of proof in Canada, an accused person is under no obligation to provide any evidence to the Court to prove they are innocent. Rather, the Crown must prove to the Court that the accused is guilty. In some cases, where the defendant has been wrongfully accused, they can simply argue that the Crown has not proven their case. Alternatively, the accused may present evidence to show that the complainant has fabricated the allegations.

What are the Possible Penalties if I’m Convicted of Domestic Assault in Newmarket?

In Ontario, domestic violence is considered a serious public safety issue. As a result, courts all over the province and especially in the Greater Toronto Area treat domestic assaults more serious than assaults occurring in other circumstances. Crown attorneys across the province utilize a specialized policy regarding how to move domestic assault charges through the criminal justice system.

Crowns tend to prosecute such cases vigorously and often advocate for more serious sentences upon conviction, including incarceration for repeat offenders or those charged with more serious offences. An individual who has been charged with an assault occurring in a domestic partner situation will be charged with a dual procedure offence, meaning the Crown may select how the case moves through the criminal justice system. In more serious cases the accused will face a maximum of five years’ incarceration. In cases involving less serious allegations, an accused will face a maximum of two years less a day incarceration if they are convicted.

Quick Facts

Can you get Domestic Assault Charges Dropped in Newmarket?

Whether it will be possible to have a domestic assault charge dropped will depend on a number of factors. Once a file reaches the Crown’s office, only they can agree to withdrawal the charge. A Crown attorney will generally only agree to drop a domestic assault charge where they do not believe they have enough evidence to gain a conviction, or where they do not believe it is in the best interest of justice to give the accused a criminal record for their conduct.

Can I Change my Bail Conditions to Contact my Spouse?

In some cases, having bail conditions varied to remove a no contact order between the accused and the complainant can be difficult. To have such a condition altered, the complainant will generally be required to prove the Crown with written documentation stating that they wish to resume contact with the accused. In some circumstances, even the wishes of the complainant will not be enough for the Crown to agree to remove the no contact order.

What is s. 266 Assault?

In Canada, there is no separate or distinct offence for domestic assault. Instead, those who are charged with domestic assault will be charged under section 266 of the Criminal Code, which is the section outlining simple assault. The fact that the assault occurred in a domestic relationship will serve as an aggravating factor in the case which may lead to stiffer penalties upon conviction.

Can I get Jail Time for Domestic Assault?

In some cases, yes. While not all individuals convicted of domestic assault are sentenced to a period of incarceration, some are. Those convicted for the first time are far less likely to be sentenced to a period of incarceration than a repeat offender. Further, the severity of the allegations will impact whether or not the Court feels a period of incarceration is appropriate.

Can my Partner Drop the Charges?

There is a common misconception that the complainant in a domestic assault case can “drop the charges” against the accused. The Crown’s office is the only party who can withdrawal the charges once they come before the Court. As a result, even where the complainant does not wish to proceed with the charges, the Crown may nonetheless proceed without the complainant.

If I Have a No Contact Order, Can I see my Kids?

In Canada, when one individual is charged with a violent crime, they will almost always be ordered not to have any contact with the complainant. In situations where the complainant and accused share custody of children, it is possible in some cases to have the no contact order varied to allow for contact relating only to the children.

If I was Intoxicated at the Time of the Offence can I use it as a Defence?

Assault is a specific intent offence. This means that to secure a conviction, the Crown must prove that the accused intended to assault the complainant. In rare circumstances, it may be possible to argue that the accused was so intoxicated that they could not have formed the necessary intent to commit the assault. This defence is not widely accepted, especially in situations where the accused became intoxicated voluntarily.