Written by Adam Higgins
Understanding the “Domestic” Factor
“Domestic Violence” is not, in and of itself, a prohibition in the Criminal Code of Canada. But s.9 of the Code makes it clear that for something to be a crime, it must be found within the Code, so what then is domestic violence? Under s.718.2(ii), during sentencing, the court must consider if the victim of the offence was the accused’s intimate partner, a member of the accused’s family, or a member of the accused’s intimate partner’s family. If this is the case the court is to increase the severity of the penalty; we call this an aggravating factor.
Someone charged with “domestic violence” has actually been charged with another violent crime under the Criminal Code that has the aggravating factor of domestic partnership between the accused and victim tacked on. Often the actual charge is assault (under s.265(1)) or some variant of assault like aggravated assault (under 2.268(1) or sexual assault (under s.271), but it is not restricted to these prohibitions. Police and Crown Attorneys are instructed to handle cases of domestic violence more strictly than non-domestic cases. The Public Prosecution Service of Canada Deskbook, which guides Crown Attorneys, explains that giving light sentences to those whose charges are aggravated by a domestic relationship between the accused and victim “…do not adequately reflect public denunciation of domestic violence and the need to deter such offenders”
If you’ve been charged with a violent crime in the domestic context in Peterborough you should understand what kinds of penalties and outcomes could be considered by the court. This blog is not meant to provide legal advice in any way and we encourage anyone who’s been charged to schedule a free 30-minute consultation with Aitken Robertson so that we can help you understand the situation and determine how best to fight your charges.
Before a conviction, if you’re simply charged, you’ll like face several heavy restrictions. The Crown and police are instructed to use these restrictions to protect the public and the victim. You’ll almost certainly be bound, under threat of legal reprimand, to avoid contract with the alleged victim. If you and the alleged victim cohabitate this means you’ll have to find a new place to stay until the restrictions are lifted. Even attempted contact through a third party, like having a sibling contact the alleged victim, can constitute a breach of this condition. All communication between you and the alleged victim should be done by having your legal counsel speak with their legal counsel.
Other possible restrictions can include prevention of unsupervised proximity to children, which can impact your ability to see your own children or even be on school or recreation centre properties. You may be required to turn over all firearms you own, as well as being prevented from obtaining or possessing any. The Crown is likely to prevent you leaving the country or province until the proceedings are concluded.
The court is distinctly aware that these penalties make it difficult for the accused to balance fighting their charges with continuing to live their life. Finding accommodations, paying for accommodations, and potential loss of work can be a huge burden. Certain restrictions can be reduced or removed through certain procedures and if your life is unduly impacted by restrictions make sure to discuss your options with your legal counsel.
Outcomes on Conviction
If you plead guilty or are found guilty by trial of a violent crime with a domestic factor you might face prison time, fines, probation, or mandatory attendance in some form of program.
The Public Prosecution Service of Canada Deskbook encourages Crown Attorneys to consider punishment other than prison time, including conditional sentences like house arrest or probation with mandated counselling. That said, the Crown is also to seek punishments that deter both the convicted offender and other potential offenders from committing the act (or recommitting the act) as well as punishments that protect the victim and public from the offender. Thus jail time is likely to remain something the Crown will seek.
If you get a non-jail sentence, you’ll likely be required to enroll and complete some kind of counselling program. The Partner Assault Response (PAR) is often the go-to for the courts to assign. These programs are meant to rehabilitate convicted offenders so that the risk of re-offence is minimized.
If you’ve been charged with a violent domestic crime it’s important to retain legal counsel; both to fight the charges initially, and in the event you’re convicted to fight the sentence to ensure you receive the penalty that least impacts your life. An experienced criminal lawyer may be able to get you a win at trial or the charges dropped, or reduced to a peace bond or a resolution that does not leave you with a criminal record.
Defending Yourself from Domestic Charges in Peterborough
Aitken Robertson’s lawyers are experienced in negotiating with the Crown, litigating in trial, and contesting the sentencing goals of the Crown. In 2018 Aitken Robertson’s Virginia Dolinska successfully negotiated a withdrawal of domestic assault charges in Napanee by agreeing to have the accused participate in anger management counselling as well as signing a peace bond. Our client served no prison time and walked away with no criminal record.
If you’ve been charged with a violent domestic crime in Peterborough contact our office for a free 30-minute consultation so that we can begin building your defence strategy as early as possible. We also offer interest free payment plans, so if you’ve been forced by pay for accommodations because of a restriction placed on you, or the charge has impacted your employment, you can rest easy knowing we’ll help you afford quality legal services. Contact our Peterborough office today so we can fight your charges alongside you.