DOMESTIC ASSAULT DEFENCE LAWYERS IN TORONTO

Home/DOMESTIC ASSAULT DEFENCE LAWYERS IN TORONTO

IMG_0414BLUE

DOMESTIC ASSAULT DEFENCE LAWYERS IN TORONTO

Donich Law Professional Corporation vigorously represents average citizens who have been charged criminally with domestic assault. Donich law has worked with a wide array of clients including those in finance, sales, public transportation, government, construction, students, retirees and medical professionals. We work to resolve your domestic assault issue as confidentially and efficiently as possible while obtaining the best possible outcomes for our clients.Charges of domestic abuse can arise in a variety of situations.

Often, disputes between family members, cohabitants or spouses will escalate to the point that the authorities are called, either by one of the participants in the disagreement or by a third party (often a neighbor). Once the police are involved it is totally within their discretion whether to lay charges regardless of the opinion of the complainant. This can create a serious and unwanted situation within the family especially when the complainant no longer wishes to pursue charges. In many cases, conditions will be placed on the accused which often stipulate that the accused cannot have contact with or live with the complainant. These conditions can often remain in place for long periods of time creating further friction within the family unit. Donich Law specializes in restoring communication between family members and spouses in the most efficient and cost-effective manner.

In addition to domestic abuse charges, Donich Law also frequently handles criminal harassment charges between domestic partners. Criminal harassment generally involves the accused repeatedly contacting an individual despite that individuals request to be left alone. These situations often arise when there has been a breakdown of a relationship. For example, in 2016 our Firm secured a withdrawal of all charges in R. v A.C. after a Hollywood Actor was accused of criminal harassment after sending over 500 emails and 100 voicemails to an ex-partner. In the Firm’s R. v. W.V. [2017], it secured a withdrawal of Assault with a Weapon against a provincial healthcare employee charged with trowing an over-baked pizza at her boyfriend’s head, causing lacerations.

Additionally, Donich Law secured a full withdrawal of all charges in R v. R.K. [2014] involving the sexual assault of a Jehovah’s Witness. Also in 2014, the Firm secured a full withdrawal of all charges in R v. E.T. which involved a CIBC employee charged with domestic assault, as well as in R v. C.L where domestic abuse was alleged against an Investors Group employee. More recently, in 2015 the Firm secured a withdrawal of all charges relating to assault with a weapon against a Toronto area paralegal. The Firm also handles a significant number of high profile domestic abuse cases. In 2015, the Firm secured a withdrawal of all charges against a City of Toronto employee who was charged with assault with a weapon after throwing a set of keys at his wife during an argument. In 2016, the Firm secured the withdrawal of an assault with a weapon charge in R v. M.R. after two women were accused of throwing makeup items at their male spouses.

In addition to domestic abuse in heterosexual relationships, the Firm has also handled a variety of cases dealing with domestic abuse in same-sex relationships. The Firm secured a withdrawal of all charges of assault with a weapon involving a same-sex couple in R v. R.S. Additionally, in 2016 the Firm secured withdrawals of all charges relating to criminal harassment where both male partners in a same-sex relationship sustained serious injuries during a mutual fight. In R v. P.T. the Firm secured a withdrawal of an assault with a weapon charge after a dispute between same-sex partner’s caused one partner to pull a kitchen knife on the other partner.

In all of these cases the Firm was able to resolve the legal issue with no criminal record for the accused. We have extensive experience dealing with both common cases of domestic abuse and also high profile cases involving employees of the City of Toronto, large financial institutions, unions and a wide variety of other professionals.

Frequently Asked Questions

What is Domestic Assault?
What is the Difference Between Domestic Assault and Simple Assault?
What Types of Assaults are Commonly alleged in Domestic Abuse Cases?
Who can be Charged with Domestic Assault?
Do Domestic Abuse Charges vary in Same-Sex Couples?
Do you have to be Married to be Charged with Domestic Assault?
What Happens Upon Arrest for Domestic Assault?
What is a Promise to Appear?
What is a Bail Hearing?
How is a Bail Hearing different in Domestic Assault Cases?
What is a 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?
What is a Recognizance?
What Kind of Conditions can be Attached to a Recognizance?
What is an Undertaking?
What Kind of Conditions can be Attached to an Undertaking?
What Are the Penalties Associated with a Domestic Abuse Conviction?
What is a s.743.21 Non-Communication Order?
What is a s.487.051 DNA Order?
What is Self Defence?
What is a s. 110 Weapons Probation?

What is Domestic Assault?

 The Criminal Code identifies domestic assault as an assault that occurs in the context of a romantic or familial relationship. The charge is laid out in section 265(1) of the Criminal Code under the category of assault as follows:

265 (1) A person commits an assault when

(a) without the consent of another person, he applies force intentionally to that other person, directly or indirectly;

(b) he attempts or threatens, by an act or a gesture, to apply force to another person, if he has, or causes that other person to believe on reasonable grounds that he has, present ability to effect his purpose; or

(c) while openly wearing or carrying a weapon or an imitation thereof, he accosts or impedes another person or begs.

 Application

(2) This section applies to all forms of assault, including sexual assault, sexual assault with a weapon, threats to a third party or causing bodily harm and aggravated sexual assault.

 Consent

(3) For the purposes of this section, no consent is obtained where the complainant submits or does not resist by reason of

(a) the application of force to the complainant or to a person other than the complainant;

(b) threats or fear of the application of force to the complainant or to a person other than the complainant;

(c) fraud; or

(d) the exercise of authority.

 Accused’s belief as to consent

(4) Where an accused alleges that he believed that the complainant consented to the conduct that is the subject-matter of the charge, a judge, if satisfied that there is sufficient evidence and that, if believed by the jury, the evidence would constitute a defense, shall instruct the jury, when reviewing all the evidence relating to the determination of the honesty of the accused’s belief, to consider the presence or absence of reasonable grounds for that belief.

When the assault occurs in the context of a romantic of familial relationship it will be considered a domestic abuse charge rather than simple assault.

What is the Difference Between Domestic Assault and Simple Assault?

 As outlined above, domestic assault is an assault that occurs within the context of an intimate relationship. Domestic assault is defined as a narrower version of simple assault. Simple assault will generally include a wide variety of assault situations that occur between individuals who cannot be said to be in an intimate relationship. This can include assaults occurring between friends, strangers, acquaintances or co-workers. Domestic assault on the other hand can only occur in situations where the relationship between the two parties can be categorized as one that is “intimate”. It is important to note that the charge of domestic assault will not appear on the accused’s criminal record. Instead, only a charge of assault will be referenced. Domestic abuse is not a separate charge on its own however it will generally be prosecuted differently than simple assault charges.

Generally domestic abuse charges will be handled more seriously by the courts than simple assault. Crown prosecutors prosecute domestic abuse cases with “vigor” and identify domestic abuse as a serious social issue. There is thought to be a significant public interest in bringing those accused of domestic abuse to justice due to the importance of a healthy family unit in our society. In some Canadian jurisdictions, domestic abuse charges will be dealt with by a special “Domestic Violence Courts” which are heard separately from other criminal matters. These Domestic Violence Courts are fairly common in Toronto and the GTA as domestic abuse charges are very common.

What Types of Assaults are Commonly alleged in Domestic Abuse Cases?

 A domestic assault allegation can include any assault related offence listed in the Criminal Code. Common types of domestic assault charges include: simple assault, assault causing bodily injury or assault with a weapon. Simple assault refers to cases where the accused has physically hit or touched the alleged victim but where no weapon was used and minimal injury resulted. Assault causing bodily injury will include cases where the victim sustained more serious or long lasting injuries. The injuries do not have to be severe, rather the victim simply has to demonstrate that they were physically injured in some way (a bruise, cut or scratch) and that the injury caused them some sort of distress or pain which was not minute or fleeting in nature. Finally, assault with a weapon is a common domestic assault charge and can arise in a variety of situations. The weapon used in the assault does not have to be a weapon by every day standards such as a gun or a knife. For example, the Firm has handled cases of domestic assault with a weapon where a spouse threw keys, a TV remote, makeup, a handbag or even a scarf at their partner.

Who can be Charged with Domestic Assault?

 As with most criminal charges, anyone and everyone can be charged with domestic assault. The Firm has dealt with a wide variety of clients who have been charged with domestic assault, from blue collar workers to highly-educated professionals. Many individuals do not have a prior criminal record and may face domestic assault as their first criminal charge. Regardless of the factors associated with the accused, our Firm is dedicated to providing the most effective and efficient outcome in your case.

Do Domestic Abuse Charges vary in Same-Sex Couples?

 No. Domestic abuse charges can and are laid against same-sex couples in the same way they are laid against opposite sex couples. “Intimate relationships” for the purposes of domestic abuse charges includes both homosexual and heterosexual relationships.

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

 No. There is no requirement that an individual be legally married to the victim for the Crown to obtain a domestic assault conviction. Rather, the relationship simply must be one that can be categorized as “intimate”. This could include married couples, common law relationships, those who are dating and those who have previously dated. This list is not exhaustive and the duration and legal formality of the relationship can differ between cases.

What Happens Upon Arrest for Domestic Assault?

 As with the majority of crimes, once a defendant has been arrested for domestic assault they will be taken into police custody and booked into the system. The police will record their personal information as well as information about their alleged crime into the police data base. Formal charges will be entered against the accused and it will be determined whether the accused will be released from police custody pending trial. In most cases the accused will be released. Generally, the accused will only be held in police custody until the trial if they have been deemed a flight risk or if they are deemed to be a danger to the public should they be released. If it is determined that the accused can be released back into society with little to no issue, they will usually be released on a promise to appear. If, however the accused is held on bail they will be required to attend a bail hearing where a judge will make the determination whether they will be released.

What is a Promise to Appear?

 In situations where an individual has been arrested on domestic assault charges and taken into custody, but the police find no compelling reason to delay release from custody, the accused will be issued a Promise to Appear and released. The Promise to Appear is a document that the accused will be required to sign prior to release stating that the accused will appear in court on a specific time and date. Failure to appear in court on this date can lead to a warrant being issued for the accused’s arrest. A promise to Appear will only be offered in cases where the police find it unnecessary to hold the accused for a bail hearing. Promise to Appear is less common in domestic assault cases, where a bail hearing will be requiring the majority of the time.

What is a Bail Hearing?

 When an individual is arrested and taken into police custody they can be released in several ways. In some cases, the accused will simply be released after being processed into the system. Other times the police will hold the accused for a bail hearing. In Canada several different types of bail exist. They include; recognizance, promise to appear or an undertaking. When an offender is held on bail they will have the right to appear before a judge within 24 hours of their arrest, or as soon as is practicable. A judge will analyze the factors in the case including submissions from both the Crown and defense council before making a decision on whether to grant bail. If bail is granted the individual will be released from police custody pending their next trial date. If bail is denied the offender will be held in police custody until the next court date in the case.

How is a Bail Hearing different in Domestic Assault Cases?

 Generally, with domestic abuse charges the individual will be held for a bail hearing before being released from police custody. As stipulated in the Criminal Code an individual who has been taken into police custody is entitled to a bail hearing before a judge within 24 hours of arrest or as soon as it is practicable. In many cases this will require the individual to spend the night in jail as bail court generally only runs during regular court hours.

Cases involving domestic abuse are dealt with differently than many other crimes. The Crown Office has specific policies in place that deal with domestic abuse cases and how they should be handled. The policy stipulates that the safety of the victim and their family is of the utmost importance when considering whether the offender should be released. In addition to safety concerns the Crown will also consider other factors such as the offenders past criminal history, the offenders history with the accused, the nature of the assault, and the injuries caused to the victim.

Often the Crown is reluctant to agree to bail in domestic assault cases. When the Crown does consent, it is generally accompanied by conditions, including the offender being required to reside with a surety.

What is a Bail Review?

A bail review is a hearing to review the bail determination made by the Justice presiding over the initial bail hearing. Bail reviews will only be appropriate in limited circumstances and may be difficult to prove. A bail review can be called by either the defense team or by the Crown at any time before the trial begins. The Justice at the bail hearing has the discretion to determine if the accused should be released from custody pending trial, the form of release and any conditions attached to the release.

To be successful in having bail altered, the accused must demonstrate that the initial Justice made an error in applying the law or that the facts or circumstances of the accused or of the case have changed since the initial hearing so that the initial decision may no longer be appropriate. A bail review may take several weeks as it is essentially a new hearing.

What is a Bail Variation?

 A bail variation refers to the method of altering the bail conditions imposed on an individual upon their release from police custody. A bail variation does not require the accused to have a separate bail hearing. According to the Criminal Code both the defense and Crown must be in agreement as to the alterations being made. In cases of domestic assault the Crown has a specific policy for dealing with bail variations.

In most cases of domestic assault the Crown will be reluctant to agree to any request for bail variation except in cases where the accused can provide evidence showing the variation would be in the best interest of the parties in the case. The accused must also demonstrate that the variations being requested are reasonable in the situation. One of the most common bail variation requests in domestic assault causes is to remove any no contact orders that have been placed on the accused. The Crown may be willing to remove this condition where the accused intends on communicating with the victim for purposes of attending counseling. The complainant must give consent to have a no contact order removed before the Crown will agree and that consent can be revoked at any time.

What is the Difference Between a Bail Variation and a Bail Review?

 Though bail variations and bail variations can accomplish the same goals, they are very different processes. A bail review is a more formal process which seeks to challenge the ruling in the initial bail order. A bail review is a completely separate bail hearing before a Justice who will determine whether the original Justice made an error of law in their decision.

A bail variation on the other hand is a request to change one or more of the conditions attached to the individual’s bail. This process is less formal and does not require a separate hearing. Rather, the accused and the Crown will have to be in agreement on the changes and if they are a judicial officer will formalize the variation. In cases where the Crown does not consent to the bail variation being requested a bail hearing will be required to move forward with the variation.

How Can a Bail Variation be Obtained?

 Generally, a bail variation can be accomplished through the defense team approaching the Crown with the proposed changes. They will be required to provide evidence supporting their claims for why the bail variation should be accepted. The Crown will agree to a bail variation in a variety of circumstances, the most common of which is when the complainant in the case agrees to the variation. To consent the complainant will be required to provide “written, revocable consent” which will be formally filed with the Crown’s office. This consent can be revoked at any time either in writing or verbally. In these cases, the Crown will be more likely to agree to the variation especially when it will facilitate reconciliation and counseling between the accused and the victim.

Bail variations are also commonly accepted through guilty pleas. The accused will agree to plead guilty to the charges in exchange for the Crown agreeing to alter the conditions attached to the accused’s bail. In these cases, the accused will often be required to attend some sort of treatment program which can be used as a mitigating factor at the accused’s sentencing.

Another common circumstance where the Crown will agree to a bail variation is where the complainant is cooperative in the case and eager to resolve the matter as quickly as possible. It is important to note that the complainant cannot simply withdrawal the charges against the accused, that decision is completely within the Crown’s discretion. The Crown will be reluctant to withdrawal domestic assault charges even where the complainant requests it. Where the complainant is cooperative in the case the Crown may introduce incremental bail variations to facilitate reconciliation and healing. If the initial minimal variations are successful and do not lead to any issues the Crown will be more likely to agree to further variations as the case progresses. Successfully completing counselling can lead to the Crown dropping the charges altogether or suggesting a more lenient sentence for the accused upon sentencing (if they’re found guilty).

Understandably, it is very common in domestic assault cases for the complainant to not want to cooperate with any proposed bail variations. In these situations, the Crown will be less inclined to agree to bail variations and may only do so where otherwise specified in family law proceedings or where the conditions imposed on the accused are so onerous as to prevent the accused from being a productive member of society (i.e. a curfew that restricts ability to work or go to school).

What is a Recognizance?

 An offender who has been arrested and taken into police custody can be released on a recognizance either before or after a bail hearing. Where the police do not think a bail hearing is necessary, they will release the accused on a recognizance which will require the accused to appear before the court on a certain day and time. Conditions will often be attached to the recognizance, requiring the offender comply until otherwise notified.

In addition to conditions, a recognizance also involves the accused paying a monetary amount to the court upon release. The payment can be made either as a pledge which the accused will have to pay if they fail to attend their court date, or a deposit paid upfront. Where the accused has been released without a bail hearing the maximum amount the recognizance payment can be set at is $500.00. In cases where the accused lives more than 200 kilometers from the place they were taken into custody they may be required to pay the recognizance fee as a deposit.

Where a bail hearing is required the recognizance payment amount will be by the judge during the bail hearing. There are three categories of recognizance in cases where a bail hearing is required including: recognizance without sureties and without deposit, recognizance with sureties and without deposit and recognizance with deposit.

Recognizance without sureties and without deposit

Recognizance without sureties and without deposit is the most lenient type of recognizance that can be imposed on an offender at a bail hearing. In these cases, the accused is not required to pay a deposit and is not required to have a surety sign for their release. Essentially this means the accused is acting as his or her own surety. The judge will set the monetary amount of the recognizance, which will be payable to the court should the accused breach any of the conditions attached to his release or fail to attend any court dates.

Recognizance with sureties and without deposit

Recognizance with sureties but without deposit refers to a recognizance where the accused is not required to make a deposit payment upfront. An amount will be set by the courts and that amount will be payable should the accused fail to comply with the conditions attached to the recognizance. Although no deposit is required, the accused is required to have a surety sign off on their release. A surety is an individual with a close relationship to the accused who takes legal responsibility for the accused upon release. This surety will be responsible for the accused complying with the conditions attached to their recognizance. The surety will be responsible for paying the recognizance amount should the accused breach their conditions.

Recognizance with deposit

Recognizance with a deposit requires the accused to pay a deposit amount before they can be released from police custody. This amount can be paid with money or in valuable securities. This type of recognizance will only be applied to individuals who live more than 200 kilometers from the location of their arrest. Once the case has completed the accused will have their deposit returned to them assuming no conditions of the recognizance were breached.

What Kind of Conditions can be Attached to a Recognizance?

 When an accused is released on a recognizance via a bail hearing there may be conditions attached to the release. The accused will be required to comply with these conditions throughout the duration of the case. The Justice presiding over the bail hearing with have the ultimate discretion as to whether to impose conditions with the accused’s release. Conditions commonly imposed on individuals who have been charged with domestic assault include but are not limited to:

 

  • “No Contact” orders which prohibit the accused from communicating or contacting the victim, witnesses or any other individuals as specified for the duration of the case or until told otherwise.
  • Conditions restricting access to the accused’s children. These conditions may require the accused to have contact with their children only under direct supervision as specified by the court. Conditions totally restricting the accused’s access to their children can also be imposed in some cases.
  • “No Go” orders which prohibit the accused from traveling outside of a certain distance from their home or work.
  • Refrain from consuming drugs (other than lawfully held prescription medication) and/or alcohol.
  • Weapons probation which prohibits the accused from possessing any type of weapon.

What is an Undertaking?

An undertaking refers to a type of release where the accused is required to appear in court on a specific day. This is the most lenient type of bail that can be granted as no deposit or surety is required before the accused is released. Similar to a recognizance, conditions which the accused will be required to obey until the case is completed are generally imposed. Penalties for breach of such conditions can include further criminal charges being laid.

In cases where an individual is arrested pursuant to an arrest warrant but released prior to a bail hearing, an undertaking will be required. This undertaking will be imposed in tandem with either A Promise to Appear or a Recognizance and may impose additional conditions. A list of possible conditions that can be imposed with an undertaking are listed below.

In cases where the accused is released via a bail hearing, an undertaking alone is often sufficient without any additional recognizance. It is up to the Justice presiding over the bail hearing to impose conditions on the accused. In less serious cases there may be no conditions at all. In more serious cases the Crown may decide to suggest conditions which the Justice will either approve or reject.

What Kind of Conditions can be Attached to an Undertaking?

 In many cases, when an accused is released on an Undertaking, the court will decide to impose conditions which must be complied with throughout the duration of the case. Many possible conditions exist including but not limited to the following:

 

  • To remain within a specific regional jurisdiction as outlined in the Undertaking.
  • To notify the court or a peace officer of any changes in permanent address and/or place of employment .
  • To refrain from contacting in any way the victim of the alleged crime, witnesses in the case or any other individuals specified in the Undertaking.
  • To surrender one’s passport to a peace officer or another individual as specified in the Undertaking.
  • To refrain from possessing a handgun and to surrender any legally owned firearms or documents relating to the license or ownership of the firearm to an authorized person.
  • To report to a peace officer in compliance with the dates and times specified in the Undertaking.
  • To refrain from consuming drugs (other lawfully held prescription medication) and/or alcohol.
  • To comply with any and all other conditions specified in the Undertaking.

In addition to the conditions listed above, the Criminal Code also lists conditions that may be applied to Undertakings when they are part of a bail hearing. In these cases, the Justice presiding over the bail hearing has considerable discretion in which conditions they will choose to impose. Conditions commonly imposed in domestic assault cases include:

  • “No Contact” terms which generally prohibit the alleged offender from contacting or communicating with certain specified individuals as noted in the Undertaking document. The wording in no contact orders generally reads: “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”.
  • Refrain from consuming (other than lawfully obtained prescription medication) drugs and/or alcohol.
  • Weapons probation which will prohibit the accused from possessing any type of weapon.
  • “No go” orders which prohibit the accused from traveling outside of a certain distance from their home or work.

What Are the Penalties Associated with a Domestic Abuse Conviction?

 As with all criminal charges, being charged with domestic abuse is a serious matter and has the potential to seriously affect the accused’s life in many ways. As with most crimes, the penalty upon being convicted of domestic abuse will vary depending on the specific facts of the case. After the charges are laid by the police it is up to the discretion of the Crown to determine whether the charges will be pursued by indictment or by summary conviction. In all cases charges that are pursued by indictment will be handled more seriously and will be accompanied by much more significant penalties.

If the Crown proceeds on indictment, section 266 of the Criminal Code dictates that the maximum penalty for assault will be five years’ imprisonment. The judge in the case will weigh both mitigating (factors that work in the favor of the accused) against aggravating factors (factors that work against the accused) to determine a just and fit sentence for the crime committed. The character of the accused as well as the circumstances surrounding the crime will also be taken into consideration. As mentioned above, domestic assault is not a separate charge from assault, however it is likely that the judge will use the fact that the abuse occurred in an intimate relationship setting as an aggravating factor in the case.

If the Crown proceeds on summary conviction, the penalties associated with a conviction are far lesser. The maximum penalty associated with any summary conviction offence is 6 months’ imprisonment and/or a $5,000 fine.

In addition to the penalties outlined in the Criminal Code, individuals who have been charged with domestic abuse are often also barred from communicating with, or residing with the victim in the case. This can have huge impacts on the family structure and can often be more troublesome than the penalties associated with being convicted of the crime. Other conditions can also be applied to the offender. These will be discussed more below.

In either case a conviction of domestic abuse will come with a criminal record for the defendant which can have significant impacts on many aspects of the individual’s life.

What is a ‘Failure to Comply with Condition of an Undertaking or Recognizance’ under section 145 of the Criminal Code?

 Section 145 of the Canadian Criminal Code outlines the offence of failing to comply with a condition of an undertaking or recognizance. As noted above, individuals who have been charged with domestic assault will often have conditions attached to their release from custody, which they will be required to comply with until otherwise notified (generally until the case has completed). Often these conditions will be imposed on the individual through a ‘recognizance of bail’ or an ‘undertaking’ which acknowledges that the accused has been released from police custody pending the next court date in the case.

Section 145 (3) states:

Failure to comply with condition of undertaking or recognizance

(3) Every person who is at large on an undertaking or recognizance given to or entered into before a justice or judge and is bound to comply with a condition of that undertaking or recognizance, and every person who is bound to comply with a direction under subsection 515(12) or 522(2.1) or an order under subsection 516(2), and who fails, without lawful excuse, the proof of which lies on them, to comply with the condition, direction or order is guilty of

(a) an indictable offence and is liable to imprisonment for a term not exceeding two years; or

(b) an offence punishable on summary conviction.

Essentially this means that an individual who fails to comply with the conditions laid out to them upon their release from police custody will be charged with an additional offence for such failure. To prove that the accused has committed this offence the Crown will be required to prove three factors:

  • The individual must be at large on a recognizance or undertaking given to the accused before a judge or justice,
  • The individual must be legally obliged to comply with the conditions of the recognizance or undertaking, and
  • The individual must have failed to comply with the conditions of the recognizance or undertaking without any lawful excuse.

It will be at the discretion of the Crown as to whether they would prefer to proceed with the charge on indictment or on summary conviction. As outlined in section 145(3) the maximum penalty for an accused convicted of an indictable section 145 violation is a maximum of two years’ imprisonment. If the Crown opts to proceed with the section 145 violation on summary conviction the maximum penalty will be six months’ imprisonment and/or a $5,000 fine.

What is a s.743.21 Non-Communication Order?

 Upon conviction for domestic assault a judge can impose a non-communication order on the defendant which will prohibit him from having any contact with certain individuals related to the case (often the victim and/or witnesses). This non-communication order is usually valid at least for the duration of the defendant’s custodial sentence. There may be exceptions to this rule where the judge considers it necessary. Failing to comply with this order can result in additional charges under s.743.21 of the Criminal Code.

What is a s.487.051 DNA Order?

 Section 487.051 of the Criminal Code outlines situations in which the judge can order bodily fluids be collected from the accused for DNA purposes and kept on file. A DNA order can be ordered on individuals who have been convicted, discharged or found guilty as a young offender of an offence listed under “primary designated offences”. Offences included under primary designated offences for youth offenders include: aggravated assault, assault with a weapon, assault causing bodily injury or simple assault. DNA orders can only be implemented for simple assault charges where the Crown has specifically requested it.

Where a DNA Order has been granted a peace officer will be permitted to collect a sample of the accused’s DNA either through plucking a hair, collecting a blood sample or swabbing the lips and cheeks of the individual. Generally, a DNA order will only be refused by the judge in limited circumstances. The most common of these circumstances is that the defence makes a strong argument that the implications on the defendant’s privacy and security of person far outweigh societies interest in granting the order. Society has an interest in the DNA being collected because it can then be stored and used in future cases to prove guilt or to identify the guilty party in an offence. The defendant on the other hand has an interest in keeping his private DNA private. Where the judge agrees that a large imbalance exists between these two interests (favour societies interests too much) the DNA order request will be denied. Factors the judge will consider when analysing the request include but are not limited to: the nature of the crime committed, the circumstances of the defendant and the nature of the intrusion into the defendant’s security of person and privacy interests. DNA orders will only be rejected by the courts in unusual circumstances.

What is Self Defence?

 The defence of self-defence, when properly raised, can act as a full defence to a charge of domestic assault, allowing the accused to avoid any and all liability for the offence. Essentially, the accused will admit to committing the crime but argue that they did so only out of self-preservation. This will act as a justification to the crime allowing the previously unlawful act to become lawful in the particular circumstances.

Self-defence is a statutory defence that is outlined in section 34 of the Criminal Code. It states that an individual will not be guilty of the crime of assault (which would otherwise by unlawful) when they can satisfy three requirements:

Section 34 (1) A person is not guilty of an offence if;

(a) they believe on reasonable grounds that force is being used against them or another person or that a threat of force is being made against them or another person;

(b) the act that constitutes the offence is committed for the purpose of defending or protecting themselves or the other person from that use or threat of force; and

(c) the act committed is reasonable in the circumstances.

Factors

(2) In determining whether the act committed is reasonable in the circumstances, the court shall consider the relevant circumstances of the person, the other parties and the act, including, but not limited to, the following factors:

(a) the nature of the force or threat;

(b) 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;

(c) the person’s role in the incident;

(d) whether any party to the incident used or threatened to use a weapon;

(e) the size, age, gender and physical capabilities of the parties to the incident;

(f) 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;

(g) the nature and proportionality of the person’s response to the use or threat of force; and

(h) whether the act committed was in response to a use or threat of force that the person knew was lawful.

No defence

(3) Subsection (1) does not apply if the force is used or threatened by another person for the purpose of doing something that they are required or authorized by law to do in the administration or enforcement of the law, unless the person who commits the act that constitutes the offence believes on reasonable grounds that the other person is acting unlawfully.

Essentially, a defence of self-defence can be raised in domestic abuse cases where the accused argues that they reasonably believed there was a serious threat of harm being applied against them or another person, that the act they are committing in self-defence is actually intended to be in self-defence and that the act that was committed is reasonable considering the situation. This means that the accused must show that unlawful force was being applied to them by the other party, that they were actively trying to defend themselves and that the force they used in self-defence was reasonable in the circumstance. For example, if an individual is punched in the face they cannot then shoot that individual with a gun and claim self-defence, because the force used to repel the initial assault is not proportionate in seriousness to the initial threat. On the other hand, if an individual is punched in the face and then punches the party back, self-defence would be applicable because the force used to repel the attack is proportionate to the original attack.

In addition to laying out the defense itself, section 34(2) of the Criminal Code also lists factors that may be used to determine whether the act was committed in self-defence. This list is not exhaustive and the defence team is free to introduce other factors into evidence which may justify their use of force as self-defence.

What is a s. 110 Weapons Probation?

 Section 110 of the Criminal Code stipulates that a judge may order weapons probation for an individual who has been charged and convicted with certain types of crimes. Section 110 of the Criminal Code states:

110 (1) Where a person is convicted, or discharged under section 730, of

(a) an offence, other than an offence referred to in any of paragraphs 109(1)(a) to (c), in the commission of which violence against a person was used, threatened or attempted, or

(b) an offence that involves, or the subject-matter of which is, a firearm, a cross-bow, a prohibited weapon, a restricted weapon, a prohibited device, ammunition, prohibited ammunition or an explosive substance and, at the time of the offence, the person was not prohibited by any order made under this Act or any other Act of Parliament from possessing any such thing

Weapons probation will prohibit the individual from owning or possessing firearms, restricted weapons, ammunition, explosives, crossbows, prohibited devices and prohibited ammunition for a maximum period of ten years. While weapons probation is not mandatory for individuals who have been charged with domestic assault, it is within the judge’s discretion to apply such a probation should they deem is necessary or even prudent in the situations. Weapons probation can be placed on anyone who has been charged with either a violent crime of a crime involving a weapon. Since domestic abuse is a violent charge one requirement has been met, meaning judges are free to impose weapons probation on virtually anyone and everyone convicted of domestic abuse. If there was a weapon involved in the domestic abuse situation there is a higher likelihood that the judge will in fact exercise their discretion and assign weapons probation to the accused.

Before a judge can make a section 110 weapons probation order they must stipulate that it is in the publics best interest that such a restriction be placed on the accused. Similarly, if the judge denies a request from the Crown for a section 110 weapons probation order they must give reasons why they feel such a probation is not necessary.

Free Consultation

Your Name

Your Phone Number

When is a good time to call you? What is it regarding?

0/140 characters

416-DEFENCE | 416-333-3623

error: Content is protected !!

Recent Posts