In Ontario, domestic assault allegations are treated very seriously by police forces and courts. Domestic abuse is a widespread societal issue which can have a devastating effect on complainants and other members of a household, so any alleged instance of it will be met by a strong prosecution, with severe penalties for conviction. In this blog, we explain the process associated with a domestic assault charge, and outline the different ways that you can best approach contesting these types of charges.

What Happens When You’re Charged with Domestic Assault 

It is first important to establish that there is no specific “domestic assault” charge in the Criminal Code. Domestic assault refers to any situation where a partner, family, or household member has alleged that you have committed an assault against them. 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 committed against a household member or intimate partner.

If you have been charged with any crime, your ability to travel, communicate with certain people or partake in certain activities may immediately be restricted. With domestic assault charges, this can include restrictions on contacting the complainant or other family members. For more serious allegations of domestic assault, such as aggravated assault, you may be held in custody until your matter is heard before the court, regardless of your innocence. If you are held in custody by police, you will then have a bail hearing to determine whether you will be temporarily released while your charges are processed through the court system.

Understanding Your Rights and Release Conditions 

If you have been charged with a domestic assault and have been released back into the public by a peace officer or court during a bail hearing, it is important to know your rights and restrictions during the pre-trial period.

When you are charged with a criminal offence, you are presumed to be innocent until you are tried and found guilty in a court of law. Unfortunately, despite this presumption, the police and courts can place certain restrictions on your freedom until your criminal matter is fully resolved. In Ontario, these conditions will be set out in an official document such as a “Promise to Appear”. Your release conditions will be highly dependent on the circumstances of your domestic assault charge, and may include being restricted from contacting the complainant, or attending certain locations where the complainant works or resides.

It is vitally important that you follow the conditions of your release, as a failure to follow these conditions can result in you being charged with further crimes, and can even lead to you being held in pre-trial custody. If you believe that your release conditions are unnecessarily restrictive, it is always better to try and change your release conditions through a court application.

Defending Yourself Against Domestic Assault Charges 

Whether you have been charged with a sexual assault or aggravated assault, domestic assault charges require a strong defence against conviction. If you have been charged with domestic assault, there are several defence strategies which may result in the best possible outcome for your case:

Challenging the Evidence 

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.

Oftentimes, resentment and anger from a divorce or other domestic issues lead to allegations of domestic abuse which are exaggerated or fabricated. As a result, challenging the complainant’s credibility through a rigorous examination of the available evidence, whether phone records or other witness testimony, may be enough to dismantle the case against you.

Questioning the Allegations 

Similarly, you can defend yourself against domestic assault charges by questioning the allegations made against you. For example, if the complainant alleges that you assaulted them on a day where you were not with the complainant, you can place serious doubts on the allegations by showing that you were not together on the date in question. Domestic assault allegations are taken seriously, but the effect of these allegations can be crucially undermined when appropriately scrutinized by your defence lawyer.

It is important to note that you are not required to prove your own innocence. To have your charges dropped, you are only required to provide the court with “reasonable doubt” as to whether you committed the domestic assault that you have been charged with.

Seeking Alternative Outcomes 

In some situations, the evidence against you may be overwhelming, and the complainant or other witnesses provide believable accounts of the underlying events. If there is a significant chance that you may be convicted of domestic assault, it may be more beneficial for you to reach an alternative resolution with the Crown for your charges.

For example, you may plead guilty to the crime that you are charged with, often in exchange for a more lenient sentence. This form of resolution can be beneficial if you are offered a significantly mitigated sentence than what you may receive if proven guilty at trial, but it also involves giving up your right to be presumed innocent. Pleading guilty may also result in a conviction appearing on your criminal record, which is an important consideration.

An experienced criminal defence lawyer will be able to discuss the potential benefits and consequences of alternative resolutions with you.

The Consequences of a Domestic Assault Conviction 

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 prosecuted by indictment or by summary conviction. If the Crown is proceeding by indictment, it is likely that you have committed a very serious assault and are facing potential jail or prison 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 2 years in jail 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.

How to Fight a Domestic Assault Charge  

Fighting domestic assault charges is difficult and requires the help of an experienced criminal defence lawyer. Whether preparing for trial, negotiating with the Crown, or navigating post-charge procedural steps, the lawyers at Strategic Criminal Defence can provide you with expert legal representation for your domestic assault charges.

Preparing for Trial 

Preparing for trial includes gathering evidence and preparing to address witness testimony. In a domestic assault case, this often involves significant preparation for the cross-examination of the complainant who alleges that you committed a domestic assault against them. This preparation is vitally important, as the credibility of a complainant is often the determining factor in a domestic assault case.

In addition to preparing to examine witnesses, you can choose to present your defence during trial. This is where you will have an opportunity to present your evidence. Any documents you wish to present, generally need to be provided to court by a witness to confirm that they are real. If you wish to testify at trial, your criminal defence lawyer will prepare you to do so. Notably, you have the right to remain silent, which means that you do not need to testify if you choose not to.

Negotiating a Resolution 

Where there is a strong case for domestic assault against you, negotiation with the responsible Crown attorney may be the best course of action for you. As discussed in the “Alternative Outcomes” section above, this may involve pleading guilty to a domestic assault offence for a significantly reduced sentence.

Post-Charge Destruction of Fingerprints and Removal of Information from Police Databases 

While going through the “booking” process, a peace officer may take your fingerprints and a photograph for identification purposes.

Once your charges have been resolved, you may be able to have your fingerprints and police photo removed from the police central database. This is always done through an application to police, as destruction of your fingerprints and photos is never automatic, regardless of whether your charges were withdrawn, or you were found not guilty.

Our office offers this service at a flat rate to clients whose charges have been resolved without a criminal record, and if you find yourself in a similar situation, we can assist you as well.

Frequently Asked Questions

When a domestic assault has allegedly taken place, it is not always up to the complainant whether charges will be dropped. Once a complaint is made, the Crown prosecutor will take control of the proceedings, and the complainant loses control over the situation. Even if a complainant is no longer willing to testify, the Crown can still successfully prosecute domestic assault charges.

However, if the Crown does not have a strong chance of proving your guilt at trial, they may elect to drop the charges against you.

Domestic assault is taken seriously in Ontario, and the consequences reflect that seriousness. If you have been charged with any kind of assault, the fact that the allegations are “domestic” is a seriously aggravating factor when it comes to sentencing.

Depending on the specific offence that you are charged with, the Crown will first determine whether to proceed by indictment or by summary conviction. If proceeding by indictment, you can face serious consequences such as a lengthy jail or prison sentence, ranging up to a maximum 10-14 years depending on the offence. If proceeding by summary conviction, you may still be sentenced up to 2 years less a day in jail.

There is also a real possibility that you receive a criminal record if convicted of domestic assault, which will impact your employment or travel opportunities in the future.

Possession of explosives without lawful excuse is a summary offence. This means that the Crown cannot choose to proceed by indictment. Since it is prosecuted summarily, the maximum punishment is no more than 6 months of incarceration and/or a $5,000 fine. Therefore, offensive volatile substances is not an indictable offence.

If you have been charged with domestic assault, the first thing that you should do is obtain strong legal representation to defend you. An experienced and competent domestic assault defence lawyer knows the difficulties that arise from domestic assault allegations and can plan a strong and effective defence on your behalf.

Our legal team at Strategic Criminal Defence defends your rights, explains the law, and works to achieve the best possible outcome for your case.

Once you have been charged with domestic assault, you have the Charter-protected right to be presumed innocent until proven guilty. This right prevents the Crown and police from treating conviction as a foregone conclusion. Despite this right, your freedoms may be restricted based on what the police or court may deem to be required in the circumstances. In a domestic assault case, this often includes a prohibition on contacting the complainant or other witnesses involved in the alleged domestic assault. Your rights are highly dependent on the circumstances, and it is highly recommended that you contact a criminal defence lawyer who can provide you with specific information about your rights.

Traveling to the US while facing criminal charges in Canada can be risky, as US border officers can deny entry based on pending charges. US immigration officials have access to the Canadian Police Information Centre (CPIC) database, which means that they will be able to see whether you have outstanding charges or warrants when you present yourself at the border. Whether you will be permitted entry to the US will vary by offence and circumstances, including the conditions of your release which may restrict travel.

If you have a domestic assault charge and are considering travelling to the US, it is recommended that you seek legal advice to assist you in evaluating your entry prospects prior to travelling. Our office now offers a “waivers” service to gain entry into the US, even with a pending criminal charge.

Conclusion 

Domestic assault involves violence or threats against a current or former partner, family member, or member of your household. Depending on the charges against you, penalties for conviction can be severe and life-altering. This type of offence is taken very seriously in Ontario and requires a strong defence strategy in response. The lawyers at Strategic Criminal Defence are experienced with the difficulties associated with domestic assault allegations and will work hard to secure the best possible outcome for your case.