Domestic Assault

Just because a complainant expresses their wishes for the charge(s) to be dropped against the accused does not mean the Crown Attorney has to or will. However, a complainant can retain legal counsel to advocate on their behalf. In a domestic case, a complainant can provide an affidavit expressing why they wish for the charge(s) to be dropped.

If you are charged with a Domestic Assault, your life instantly changes. When faced with a charge that can turn your world upside down, you need a domestic assault lawyer with the experience to ensure your rights are vigorously defended.

Factual Innocence

If the Crown is unable to prove the essential elements of the particular offence beyond a reasonable doubt, they will have failed to discharge their burden, and the accused will be acquitted.

Accused’s Belief in Consent

The Crown must be able to prove beyond a reasonable doubt that the complainant did not consent to the assault. A defence to an assault charge may be that the “assault” was a consensual fight (i.e. a fight between players during a hockey game or a consensual bar fight). However, a person cannot consent to an assault where a party intended to cause bodily harm.

Self-Defence

Self-defence is commonly invoked in assault cases. One’s actions may be justified in certain circumstances, such as where one has to protect oneself or someone else. In order to successfully argue self-defence, one must be able to demonstrate that:

• there were reasonable grounds to believe that they or others were at risk of acts of force or the threat of force;
• the accused’s actions were committed for the purpose of defending or protecting themselves or someone else; and
• the act committed was reasonable in the circumstances.

Defence of Property

A person will not be guilty of an offence if they can demonstrate:

• They have reasonable grounds to believe they are in peaceable possession of property or are acting under the authority of a person who has reasonable grounds to believe they have such possession;
• They believe, on reasonable grounds, that someone has or is about to enter the property without authority to do so, is taking/about to take property, or has/is about to damage or destroy the property;
• The accused’s actions were for the purpose of preventing that person from entering/taking/damaging/destroying the property; and
• The act committed was reasonable in the circumstances.

Violation of Charter Rights

Under the Canadian Charter of Rights and Freedoms, individuals are afforded specific rights, including:

• the right against unreasonable search and seizure;
• the right to not be arbitrarily detained;
• the right to be informed promptly of the reasons for arrest;
• the right to retain and instruct counsel without delay; and
• the right to be tried within a reasonable time.

A successful Charter challenge may also result in a stay of proceedings or evidence from your case being excluded.

In a domestic case, there is almost always a no-contact order between the accused and the complainant while the case is ongoing (and potentially afterwards, as well). The complainant may give their consent to have contact with the accused person by filing a letter with the police. However, the complainant can revoke the consent at any time, without reason, by simply calling the police.

Yes, men can be victims of domestic violence. Domestic assault does not discriminate based on gender and can affect anyone, regardless of age, background, or circumstance. Men may face physical, emotional, psychological, or financial abuse in intimate relationships. Unfortunately, societal stigma and traditional gender roles can make it harder for male victims to seek help or report abuse. It is important to recognize that all victims deserve support and protection, and there are resources available to assist men experiencing domestic violence.

Assault is a hybrid offence, meaning the Crown can proceed by summary conviction or indictment. The potential penalties are as follows:

• If the Crown proceeds by summary conviction: the maximum punishment is a fine of not more than $5,000 or a term of imprisonment of not more than two years less a day, or both.
• If the Crown proceeds by indictment: maximum punishment of 5 years’ imprisonment.

Under section 265 of the Criminal Code, a person commits an assault when:

• without the consent of another person, they apply force intentionally to that other person, directly or indirectly;
• they attempt or threaten, by an act or a gesture, to apply force to another person, if they have, or cause that other person to believe on reasonable grounds that they have, present ability to effect their purpose; or
• while openly wearing or carrying a weapon or an imitation thereof, they accost or impede another person or beg.

There is no separate offence of Domestic or Spousal Assault in the Criminal Code. Given the sensitive nature of assaults committed within personal relationships, many courthouses in the GTA have created specialized courtrooms, staffed by prosecutors who deal exclusively with cases of Assault where the accused and complainant are intimate partners.

To be classified as a Domestic Assault for the purposes of these courts, the accused and complainant need not be married. The relationship can be any personal relationship between two people, whether they are dating, living together, common-law, or married. Relationships can be between a woman and a man or same-sex partners.