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.
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About The Author
Michael Oykhman
Managing Partner
Michael Oykhman is a senior lawyer and founder of Strategic Criminal Defence, a full-service criminal law firm with central law offices across Western Canada and Ontario.
My professional experience consists of countless court appearances and thousands of successful defences and satisfied clients. Over the last 10 years, I have worked to build a law office where all the lawyers share our collective experience, resources, and passion to help people. Our team approach to legal representation is client–rather than only law–centred. We look for opportunities to add value to our clients through strategic thinking and creative solutions.
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