Domestic Assault Laws in Canada

Domestic assault is an assault that occurs in the context of a domestic relationship, or an intimate relationship between two people of the same sex or two people of the opposite sex. This includes boyfriends and girlfriends, spouses, common-law partners, and other family members. It is important to know that while domestic assault is not an offence specified or defined in the Criminal Code, it is viewed as unique and treated differently than regular assaults by the police and by the courts.

Assaults that occur in the domestic context are treated more seriously than regular assaults for three main reasons: (1) domestic abuse is widespread in our society, (2) domestic assault can have a devastating impact on children, and (3) there is a high risk that domestic violence will escalate if it is not dealt with quickly and effectively. As such, in Canada domestic assault is an extremely serious offence and if you are found guilty of this offence, it will be an “aggravating factor” in sentencing. This means that the penalty for domestic assault will be more severe than the penalty that you would receive for a conviction for an assault that was not inflicted in the domestic context.

As such, any of the different types of assaults specified in the Criminal Code can be a domestic assault, so long as it is committed in the context of a domestic relationship. For example, you can be charged with simple assault, assault causing bodily harm, sexual assault, or aggravated assault, and any of these will be considered a domestic assault if it was committed against a family member or intimate partner.

To be convicted of domestic assault, the Crown Prosecutor will need to prove beyond a reasonable doubt the following:

• The complainant was in a domestic relationship with you. So the complainant was a family member, romantically involved with you, married to you, or was your common law partner;
• That you directly or indirectly applied force to the complainant without his or her consent;
• The application of force was intentional; or
• Through the use of words or actions, threatened or attempted to threaten to apply force to the complainant, and you had the present ability to carry out that threat; or
• You accosted or begged the complainant while holding a weapon or an imitation of the weapon.

It is very important to note that the threat of assault is all that is required for an assault charge to be laid, so a person who is charged with domestic assault may be found guilty of the offence even if the complainant did not sustain any physical injuries. Furthermore, it is sometimes the case that the application of force in a domestic assault does not really cause any lasting injuries. Even so, you may be found guilty of domestic assault if the application of force was intentional and the complainant did not consent to it.

The Penalty For Domestic Assault in Canada:

The penalty for committing domestic assault in Canada depends heavily on your circumstances and can range from everything from a peace bond to time spent in prison. The exact nature of your sentence will depend heavily on the type of assault you have been charged with and whether the Crown is prosecuted by indictment or by summary conviction. If the Crown is proceeding by indictment, it is likely that you have commit a very serious assault and are facing some jail time. This will typically be the case if you have been charged with a serious offence like assault causing bodily harm or aggravated assault. For offences like sexual assault or assault causing bodily harm, you can face up to 10 years in prison if the Crown is proceeding by indictment, or 18 months in prison if they are prosecuting the charge as a summary conviction offence. If you are convicted of aggravated assault, you can face up to 14 years in prison.

Further, if you are convicted of one of the more serious forms of domestic assault such as aggravated assault or assault with a weapon, you may receive ancillary orders such as a DNA order or a firearms prohibition. The DNA order will require you to submit samples of your DNA to a national database that can be accessed by police officers across Canada. The police will then be able to access information about your DNA when they are investigating a crime, and will be able to use it to determine whether you are a suspect in other, subsequent offences.

To find out the exact nature of the jeopardy you face it is highly recommended that you call our office and speak to one of our lawyers as soon as possible. As the penalty that the Crown will pursue will depend heavily on your exact charges and personal background, speaking to one of our lawyers will provide you with the clearest indication of what type of sentence you might face following a conviction for domestic assault. Importantly, discussing your matter with a criminal defence lawyer will allow you to quickly ascertain whether there is a possibility of obtaining a pre-trial resolution that will allow you to completely avoid a criminal record.

How can I get my domestic violence charges dropped?

Contrary to what many people believe, domestic violence charges will not automatically get dropped if the complaint changes his or her mind and tells the police they no longer wish to charge you criminally. Rather, once a complaint of domestic violence is made to the police and a charge is formally laid, the Crown Prosecutor takes control of the proceedings and the person who made the complaint loses all control over the prosecution of the accused.

In fact, it is possible for a successful prosecution to be carried forward even if the victim will no longer willingly participate in the criminal proceedings. Firstly, the Crown can always subpoena the complainant into court and put him or her on the stand as a witness, even if that person does not want to testify about the offence. Once he or she is on the stand, that person will be compelled by law to tell the truth. Further, if the complainant chooses to ignore a subpoena, under Canadian law the Crown has the power to have that person arrested and brought before the court, or held in custody until they can be brought before the court.

Secondly, in some situations the Crown can seek to have prior statements made by the complainant to the police entered into evidence for the truth of its contents. If the Crown in successful in that application, it may be the case that the statements that the complainant made to the police after the offence can be used to convict you, even if he or she refuses to adopt those statements before the court. Furthermore, the Crown may not even need the complainant’s testimony if they can establish the elements of the offence through eyewitnesses that were present when the crime was committed.

If you do not have a high likelihood of success at trial, there is still a possibility that the charges against you can be withdrawn, or that you can avoid a criminal record with certain resolution options.

What are the best defences to a domestic assault charge?

While the best defence to any charge will depend heavily on the circumstances of the case, if you are proceeding to trial a crucial component of your defence will be undermining the credibility of witnesses who will testify against you.

Unfortunately, due to anger, jealousy, or bitterness arising from a divorce or some other domestic issue, many allegations of domestic abuse are exaggerated or fabricated. As a result, challenging the complainant’s credibility through a rigorous examination of the available evidence (witness testimony, phone records, etc.) may be enough dismantle the case against you.

Another common defence to any type of assault charge is self-defence. However, due to recent changes in our law, an accused can only successfully argue self-defence when they meet a number of criteria stipulated in the Criminal Code. In order to succeed with a self-defence argument you will have to show that:

Force is being used against you, or you had reasonable grounds to believe that force would be used against you;
Your response to the threat was done only for the purpose of defending or protecting yourself from the threat or use of force;
Your response was reasonable in the circumstances. Essentially, whether a reasonable person in your same situation would have acted in the same way.
When considering whether your actions were reasonable in the circumstance, the court will consider a host of factors such as the history between you and the complainant, whether you were intoxicated at the time of the offence, your size relative to the size of the complainant, and whether the force that you used was proportional to the force or threat being applied by the complainant.

The third most common defence to domestic assault charges is to use Charter applications to seek the exclusion of incriminating evidence in trial. A Charter application is a legal motion which outlines various ways in which the police violated an accused’s Charter rights in the course of a criminal investigation. Because the rights and freedoms guaranteed to us in the Charter are heavily guarded by our courts, there is a low tolerance for investigative techniques that seriously infringe on those rights and freedoms. As such, when your counsel can prove that your Charter rights were violated, he or she can also argue for the exclusion of evidence that was connected to, or obtained by virtue of that violation.