What is domestic assault?
Generally, an assault is the intentional application of force, no matter how slight, on an individual without someone’s consent. An assault can also include words, acts or deeds that are not an application of force but might reasonably lead someone to fear that a use of force is coming. This can be something as trivial as a tap on the arm or a fake punch that was never meant to connect or something much more significant which caused an actual injury. There are some exceptions. In sports such as boxing, hockey, and football there is consent to this intentional application of force in most situations.
As for as ‘domestic assault,’ this refers to an assault that occurs during a domestic relationship (married partners, common-law partners, dating couples, parent/child). They are treated more severely in the criminal justice system than other assault offences.
Unfortunately, sometimes one partner will invent or exaggerate facts in an effort to obtain exclusive possession of a matrimonial home or de facto custody of the children (and denying access to them) all without having to pay for a lawyer and have a judge decide in family court. Judges are suspicious of such domestic assault charges in the context of an ongoing custody feuds. Once a charge is laid it often becomes an avalanche bringing unforeseen consequences to all involved.
What are the penalties for domestic assault?
If found guilty, you might face jail time, fines, probation, or mandatory attendance in some form of counseling program. You may be unable to possess or purchase firearms for a period of time and may have to provide a DNA sample. Notably, the Public Prosecution Service of Canada Deskbook encourages Crown Attorneys to actually consider punishment other than jail time. This could mean conditional sentences like a house arrest or probation with mandated counseling. Still, given that the Crown typically wants to find a penalty that will deter future criminal conduct, jail time is likely to remain in the cards.
If you receive a non-jail sentence, it’s likely that you will be mandated to complete some kind of counselling program. The Partner Assault Response (PAR) is a popular choice, and they are meant to rehabilitate convicted offenders and to minimize the risk of the assault occurring again in the future.
In rare occasions, if the Crown does not find there to be a reasonable prospect of conviction based on the evidence involved, a peace bond may be ordered instead. Simply put, a peace bond is a set of conditions that you must abide by – typically, they include a no-contact order with the victim involved in the assault. Once the peace bond is entered, the assault charge is withdrawn or dismissed. A peace bond is not a criminal record. It is generally speaking considered an excellent result.
What can you expect if charged with domestic assault, and what defences are possible?
The Criminal Code makes it clear that upon sentencing, the fact that an assault was performed within a domestic relationship could be seen as an ‘aggravating factor.’ However, these are often the most difficult factors for the Crown to prove. This is because most relationships are incredibly intricate, making it difficult to determine who did what and why. As a result, the Crown has a high burden of proving beyond a reasonable doubt that an accused is guilty.
At your defence team, your lawyers will try to build a case that raises this reasonable doubt. This can be done in several ways: for instance, evidence collected by police can be deemed as inadmissible if the wrong procedure was taken, or if your Charter rights were violated. Domestic relationships can often involve power imbalances in the relationship, and the courts understand that sometimes false allegations are made because of the power shifts that can occur when one person in a relationship gets charged. Here, your defence lawyer can question whether the witness is reliable or not. If your lawyer can show the court that the victim’s story is on shaky ground, the Crown’s case weakens. It is also possible to put forward other pieces of evidence that help your case, like proof that you were not at the location of the assault when it allegedly happened, or even character evidence that shows the court who you are as a person.
Defences include accident, consent fight, and self defence.
Today, there is a great public interest in pushing education to the forefront, especially to those who were involved in minor instances of domestic assault. In this light, education could be seen as a preventative measure to avoid future crimes from occurring. A proper solution to a domestic assault charge would be one that ensures a safer domestic atmosphere as time goes by, and which respects the rights of the truly harmed. By understanding the public perception of these kinds of cases and the responsibilities imposed on Crown counsel and police, this helps the team at Aitken Robertson resolve these matters in the most positive way for you. Prosecutions sometimes litigate matters which are more properly the subject of proceedings in family court.
