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Key Takeaways
- Domestic assault charges in Ontario follow a strict zero-tolerance policy, meaning charges often proceed even if the complainant wants to withdraw.
- Psycholegal defence strategies use psychological assessments and expert testimony to explain the accused’s mental state and mitigate penalties.
- Forensic psychologists and other expert witnesses can provide evidence on trauma, PTSD, or risk assessments to influence bail, sentencing, or trial outcomes.
- Trauma-informed defence strategies such as PTSD, Battered Women’s Syndrome, or automatism can reduce liability or sentencing severity.
- Expert witness credibility is critical: reports must remain objective, fact-based, and within professional expertise.
- Judges have full discretion in admitting psychological evidence; success depends on strong coordination between the legal team and psycholegal experts.
Table of Contents
- Psycholegal Considerations in Ontario Criminal Court
- Psychological Assessment Expert Witness in Domestic Assault Defence
- Expert Testimony in Domestic Assault Defence
- Forensic Psychologist in Domestic Violence Defence
- Mitigation Through Psychological Evidence
- Trauma-Informed Defence Strategies
- Psychological Report Admissibility in Canada
- Expert Witness Credibility in Domestic Assault Cases
- Benefits and Risks of Psycholegal Defence Strategies
- Conclusion: The Future of Psycholegal Approaches in Domestic Assault Defence
- Frequently Asked Questions About Psycholegal Defence in Domestic Assault Cases
In Ontario, the police and the Crown follow a zero-tolerance approach to domestic assault. After someone calls 911 for family violence, the police and the Crown will most likely proceed with charges, even if the victim changes their mind and seeks to withdraw the accusations. To combat the charges, the defence will address all factors that could be mitigating or exculpatory for the defendant, including their psychological state as a basis for applying psycholegal defence strategies.
In the Ontario criminal court, psycholegal considerations can help mitigate accusations and potential penalties. Below, we take a closer look at integrating psychological evidence into the defence and explore trauma-induced defence strategies.
Psycholegal Considerations in Ontario Criminal Court
In the Canadian Criminal Code, there is no specific offence of domestic assault. Instead, the criminal law views family violence as an assault that takes place in the context of an intimate relationship between two people and treats it as a more serious offence.
When the Crown makes a decision related to the accused’s detention or prosecution, they consider a detailed risk assessment made by police at the time of arrest. Among other factors, such as the history of the accused and the relationship with the victim, the risk assessment checklist includes psychiatric issues related to the accused.
Psychological Assessment Expert Witness in Domestic Assault Defence
In psycholegal defenсe, the expert witness testimony is one of the key elements of the case strategy. Most often, the defence calls experts specializing in the treatment of trauma, forensic psychologists, and psychological assessment experts as witnesses for domestic assault.
When the defence engages psychologists to support trauma-informed defence strategies, the evidence is provided in the form of an expert opinion. Other types of expert witness evidence can also include results of forensic tests, such as the Structured Clinical Interview for DSM Disorders (SCID) and other tools, used to evaluate the defendant’s mental state and conduct risk assessments.
Expert Testimony in Domestic Assault Defence
In court practice, judicial reaction to expert testimony can vary from attaching great weight to such opinions to dismissing them as speculative or theoretical.
For example, in some cases, such as R. v. MacInnis, the judge was prepared to accept the psychiatrist’s testimony about the accused’s mental state due to the witness’s established expertise in the area. However, in other cases, the courts viewed experts testifying about an offender’s PTSD as their advocates, rather than as impartial medical professionals, especially if such experts were previously in a doctor-patient relationship with the accused.
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Forensic Psychologist in Domestic Violence Defence
Calling a forensic psychologist as a witness is a common strategy employed by domestic assault lawyers. Under the circumstances, the participation of mental health professionals in a court trial can help establish new facts and apply psycholegal defence strategies.
As it was outlined in the often cited guidance, the primary task of an expert is to serve as a consultant and to educate the court, the lawyers, and the retaining agencies about matters the court knows little about. Importantly, when providing an opinion, experts need to stick to their roles as consultants and not try to act as a part of the defence team.
Mitigation Through Psychological Evidence
In criminal cases, including domestic assault, the psychological state of the accused can act as an aggravating or mitigating factor. While substance-induced mental state is an example that can be considered aggravating, the instances of PTSD, personal history or background can be seen as mitigating factors under the circumstances.
For example, when demonstrating that the accused is at low risk of engaging in violence, a criminal lawyer can employ risk assessment tools such as the Ontario Domestic Assault Risk Assessment (ODARA) as a predictor of the accused’s behaviour and use it during the bail hearing or other stages of the court process. The defence can use expert witness testimony to pursue trauma-informed defence strategies, such as automatism or “battered woman syndrome”. Finally, in existing court practice, judges may also consider the mental state of the accused and the impact of incarceration on rehabilitation as well.
“In domestic assault cases, psychological evidence can make the difference between a conviction and a more balanced outcome. A well-prepared expert report not only informs the court but also humanizes the accused, allowing the judge to see the full context of the situation.” — Joel Prajs, Criminal Defence Lawyer at Vilkhov Law
Trauma-Informed Defence Strategies
In domestic assault cases, psycholegal defences can be applied in court when the judge is likely to take the accused’s mental state into account as a potentially mitigating factor.
Most often, psycholegal defence strategies for domestic assault cases fall into the following categories:
- Post-Traumatic Stress Disorder (PTSD): In domestic assault, the court can view PTSD as a mitigating factor and take it into account in sentencing.
- Battered Woman Syndrome (BWS): In cases involving self-defence where the response is disproportionate to the threat, the accused’s mental state, for example, “battered woman syndrome,” can be a factor to mitigate the charges.
- Trauma-Induced Automatism: In cases where the accused in a domestic assault acts in a state of impaired consciousness and has no voluntary control over their actions, the defence of automatism can be raised.
- No Criminal Responsibility on Account of Mental Disorder (NCRMD): In situations where a mental disorder prevents an individual from acting voluntarily or from fully understanding the consequences of their actions, the court may hold them not criminally responsible.
Psycholegal Defence Strategies in Domestic Assault Cases
| Defence Strategy | Description | Legal Impact in Ontario Courts |
|---|---|---|
| Post-Traumatic Stress Disorder (PTSD) | Psychological trauma leading to heightened responses or impaired judgment. | Can be considered a mitigating factor in sentencing. |
| Battered Woman Syndrome (BWS) | Long-term abuse causing self-defence responses that may appear disproportionate. | May reduce liability in self-defence cases involving intimate partners. |
| Trauma-Induced Automatism | State of impaired consciousness where actions are involuntary. | Can support a full defence if proven, potentially leading to acquittal. |
| No Criminal Responsibility on Account of Mental Disorder (NCRMD) | Mental disorder prevents understanding of actions or acting voluntarily. | Court may find the accused not criminally responsible. |
Psychological Report Admissibility in Canada
Section 657.3(1) of the Criminal Code provides that in criminal proceedings, the expert witness testimony can be given by means of a report accompanied by an affidavit setting out the qualification of the expert. Accordingly, the defence engages forensic psychiatrists or psychologists with relevant qualifications to testify in court.
In existing court practice, expert evidence, including psychological reports, is admissible if it is relevant to the case, assists in establishing the facts and is given by a properly qualified expert with accepted expertise. After the court admits the evidence and hears the expert, it can further accept or reject such evidence based on its totality, which also includes the underlying facts and the expert’s qualifications.
Expert Witness Credibility in Domestic Assault Cases
As demonstrated in court cases, judges can dismiss expert witnesses if the court concludes that the expert goes beyond the role of an objective mental health professional.
When providing witness testimony, expressing opinions and submitting the results of risk assessments, experts can avoid doubt if they restrict their reports to describing the accused’s history, diagnostic conditions, mental state, and signs and symptoms. By leaving the judge and the jury to weigh the medical facts in the context of legal standards, the experts can avoid overstepping their role and have their report accepted as evidence in court.
Benefits and Risks of Psycholegal Defence Strategies
In admitting the psychological reports and evidence, the judges rely extensively on expert opinions. At the same time, the judges exercise full discretion in making the accused’s mental state, such as PTSD, a central issue in sentencing or declaring it completely irrelevant under the circumstances.
Thus, the success of psycholegal defence strategies depends on the context of the criminal case, the nature and impact of the accused’s mental state on their actions, and expert witness credibility in domestic assault cases, among other factors. Integrating psychological evidence into the defence requires coordination between the legal team and the experts, as well as limiting expert witness testimony to diagnosing mental factors and defining psychological variables.
Conclusion: The Future of Psycholegal Approaches in Domestic Assault Defence
In court practice in Canada, psycholegal defences, such as PTSD, BWS, or NCRMD strategies, are still developing. The judges exercise full discretion in admitting expert testimony in domestic assault defence and can apply divergent approaches when considering the role of the accused’s psychological state in the offence and sentencing.
At the same time, trauma-informed defence can be an effective strategy in domestic assault cases where the defendant’s mental state was significantly affected. If you are interested in more information or face criminal charges in Ontario, you can reach out to us in your city — to our Brampton criminal lawyer, or to our team in Mississauga, Richmond Hill, Vaughan, Innisfil, Brampton or across the GTA.
Frequently Asked Questions About Psycholegal Defence in Domestic Assault Cases
What are psycholegal defence strategies in domestic assault cases?
Psycholegal defence strategies combine legal arguments with psychological evidence, such as trauma assessments or expert testimony, to explain the accused’s mental state and mitigate charges or sentencing.
Can psychological assessments be used as evidence in Ontario courts?
Yes. Under section 657.3(1) of the Criminal Code, psychological reports and expert testimony are admissible if prepared by a qualified professional and relevant to the case.
What role does a forensic psychologist play in a domestic violence defence?
A forensic psychologist can evaluate the accused’s mental state, provide risk assessments, and testify in court. Their role is to inform the court objectively, not to act as an advocate.
How does trauma-informed defence strategy work?
Trauma-informed defence considers how PTSD, Battered Woman Syndrome, or other trauma-related conditions influenced the accused’s actions, potentially reducing liability or sentencing severity.
What are the risks of relying on expert witnesses in domestic assault cases?
Expert evidence can be challenged by the Crown, and judges may dismiss testimony if they view the expert as biased or going beyond their professional role.
When should someone contact a domestic assault lawyer in Ontario?
Immediately after charges are laid. A skilled domestic assault lawyer can engage psycholegal experts early and build a strong, coordinated defence.
