Am I Fighting a Losing Battle?
In an era of fast and harsh public reactions to highly publicized criminal cases, it’s possible that you may be concerned that fighting a charge of spousal assault may be futile. This concern, while understandable, is possibly unwarranted.
A study published in Juristat found that between 2005/2006 and 2010/2011, in a sample size of 179,826 cases of intimate partner violence in Canada, only 44% resulted in a guilty conviction. The other cases outcomes included acquittal, a finding of “not guilty” by the court, as well as stayed or withdrawn charges, being any cases where the charges were dropped, dismissed, or a non-criminal penalty was agreed to by both the Crown and the accused. The results for Whitby charges could be anticipated to be roughly the same as the survey.
The Crown takes the act of charging someone with domestic assault seriously. Section 718.2(ii) of the Criminal Code of Canada makes crimes committed by one member of a marriage or common-law partnership against the other a more serious offence. In 2011 around 71% of domestic assaults reported to police saw charges either laid or recommended, compared to only 39% of reported non-domestic assaults.
This keen stance on domestic assault charges doesn’t necessarily mean the police and Crown have more evidence or a stronger argument in domestic cases. If you’re charged with domestic assault, it’s incredibly important that you obtain legal counsel as early as possible to ensure your case is handled swiftly and correctly by trained criminal defence lawyers.
Pre-Trial: Can the Charges Be Dropped?
The simple answer is yes, sometimes, but it’s a complex process.
Charges can, and in the past have, been dropped against individuals’ charges with domestic assault. If the police made any errors in their arrest, mishandled any evidence they took, or violated any of your rights, it’s possible that your charges could be dropped. The Crown is required to follow strict guidelines during a case, and if they’ve violated their own rules at all it could be grounds to have your charges dropped.
The Crown might have very little evidence, if any, to bring to a trial. If they don’t have enough evidence to be confident in their chances of a conviction, they may be open to dropping the charges or agreeing to deal. If, for example, the only evidence the Crown must bring before the judge is the testimony of the alleged victim, it’s possible that an agreement could be made in which the charges are dropped or reduced to a non criminal peace bond in exchange for a restorative sanction, such as counselling sessions. That is particularly the case when there are no injuries, when the complainant wants the charge dropped, and when they have not provided KGB video statement evidence to the police.
Figuring out if there is something that could help get the charges withdrawn takes time and an understanding of procedural law, criminal law, and the precedent set by previous domestic assault cases. Hiring legal counsel to sift through the details of your case to look for such options is always advised.
The Trial: Winning at Court
Should the case make it to trial the goal of the defence lawyer becomes convincing the court that you’re not guilty. The advantage the defence has over the Crown is the degree to which this needs to be proven. The Crown must convince the court of an accused’s guilt “beyond a reasonable doubt”. The defence, in contrast, needs to create that reasonable doubt. This can be done by both demonstrating strong evidence supporting your claim of not guilty and calling into question the evidence the Crown uses against you.
So, What Should I Do?
Hiring legal counsel to represent you in your fight against charges of domestic assault is an important step. If you’re in the Whitby area and you’ve been charged, your case falls within the jurisdiction of the Oshawa courthouse. Located just over 500 meters from the Oshawa courthouse, Aitken Robertson’s team of experienced defence lawyers can help argue your case both inside and out of the court room, to bring you to a desirable outcome.
Contact Aitken Robertson’s Oshawa branch for a free 30-minute consultation to find out what our team can do to represent you against charges of domestic assault. Our block rate method of charging ensures that you’ll know what the cost of your defence will be before you choose to hire us, and our interest fee payment plans keep the payments manageable so that regardless of your financial status you can afford experienced representation.
 Beaupre, Pascale. “Cases in adult criminal courts involving intimate partner violence” (2015) Juristat.