What are the Best Defences to Domestic Assault?

The term assault has a broad definition and encompasses a wide spectrum of occurrences. On one end of the spectrum there are simple, minor assaults such as a situation where one individual lightly makes contact with another individual without their consent. On the other end of the spectrum are violent simple assaults, such as when an individual violently strikes another individual. In addition to simple assault, an individual may also be charged with assault causing bodily harm where they injure the complainant, assault with a weapon where a weapon is used, or aggravated assault where the assault causes the alleged victim to be wounded, maimed, disfigured or endangers their life.

The offence of simple assault, as outlined in section 266 of the Criminal Code, is a hybrid offence. This means that the Crown will elect to proceed either by indictment or by summary conviction, depending on the severity of the alleged assault. This election will greatly influence the maximum penalty available upon conviction. In less serious cases, the Crown will elect to proceed by summary conviction and the maximum penalty will be two years less a day imprisonment and/or a $5000 fine. In more serious cases, the Crown will elect to proceed by indictment and the maximum penalty will be five years’ imprisonment.

The offence of assault causing bodily harm is also a hybrid offence. In less serious cases, the Crown will elect to proceed by summary conviction and the maximum penalty will be two years less a day imprisonment and/or a $5000 fine. In more serious cases, the Crown will proceed by indictment and the maximum penalty will be ten years’ imprisonment.

The offence of assault with a weapon is a hybrid offence. In less serious cases, the Crown will elect to proceed by summary conviction and the maximum penalty will be two years less a day imprisonment and/or a $5,000 fine. In more serious cases, the Crown will proceed by indictment and the maximum penalty will be ten years’ imprisonment.

Aggravated assault is the most serious of all assault charges in Canada and is a straight indictable offence. An individual who is convicted of aggravated assault will be liable to a maximum of fourteen years’ imprisonment.

Whether or not a particular assault charge will result in a term of imprisonment will depend largely on the facts of the case and the background of the accused. Where the assault is serious and the accused has a history of violent behaviour, the chances of the Court imposing a custodial sentence are greatly increased. In some situations, accused persons will be able to attend counseling to gain insight into their actions prior to sentencing which may demonstrate remorse and result in a more lenient sentence. Our Firm has experience defending individuals charged with a wide variety of assault charges and regularly obtain favourable results for our clients.

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 are the Best Defences to Domestic Violence Charges?
-Consent
-Defence of Person
-Defence of Property?
-Reflex Action

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 are the Best Defences to Domestic Violence Charges? 

In Canada, there is no separate offence in the Criminal Code for domestic assault. An individual who is accused of assaulting their intimate partner will be charged with assault, however cases of domestic assault are prosecuted more harshly than other assaults. Crown attorneys across Ontario use a specialized policy regarding how to prosecute domestic assault charges. Many courthouses even have a designated courtroom for domestic assault cases.

Cases of domestic assault are generally prosecuted more rigorously, and Crown’s often advocate for more serious punishments for those convicted. The fact that an assault occurred in a domestic relationship will be seen as an aggravating factor and may be used to justify a more severe sentence.

In Canada, there are four defences commonly used by those charged with assault, including domestic assault:

  • Consent
  • Defence of Person
  • Defence of Property
  • Reflex Action

Consent

An individual who has been charged with domestic assault may argue that their partner consented to the assault. In situations where both parties have agreed to the use of physical force and that physical force is what leads to the assault charge, the defendant may use the defence of consent. This defence is rarely used and will require the accused to testify at their trial and provide evidence that the complainant consented to the assault. The complainant will also likely need to testify and confirm the accused’s version of events.

Defence of Person

In Canada, it is legal for an individual who is being physically attacked to use force to stop that attack and protect themselves or another person. An individual may use only the force reasonably necessary to stop the attack. In cases where the alleged victim was actually the aggressor, the defendant may argue that they were defending themselves when they used physical force against the complainant.

The defendant must prove that they genuinely believed they were being assaulted or were being threatened with assault. An Individual who uses excessive force to repel an attack will not be able to use this defence and will likely be convicted of assault. Individuals may also use force to defend another person. For example, an individual would be permitted to use force to stop their intimate partner from physically assaulting another member of the household.

Defence of Property

In Canada, an individual may use the defence of defence of property where they used physical force to expel another individual from their property and were charged with assault as a result. To use this defence, the accused must have been in peaceful possession of the property from which they expelled the complainant. This means that the accused must have had a legitimate, legal right to possess the property. Where an individual is in peaceful possession of property and another individual, including an intimate partner who does not have a legal right to the property, refuses to leave, the individual in peaceful possession of the property may use the amount force reasonably necessary to remove the trespasser.

Reflex Action

In rare circumstances, an individual who has been charged with assault may use the defence of reflex action. Since assault in a specific intent offence, to secure a conviction the Crown must prove, beyond a reasonable doubt, that the accused intended to assault the complainant. If the accused can prove that they lacked the necessary intent and only made physical contact with the complainant as a result of a reflex action, they may be acquitted of the charges against them.

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