Being charged with assault is already serious , but when you are charged with domestic assault, there are additional challenges that you will face. Having a domestic assault lawyer in your corner will help ensure your case is on the right track.
What is domestic assault?
Domestic assault refers to assaultive crimes committed against someone you have a domestic relationship with. Most often, domestic assault occurs between romantic partners.
It is not defined in the Criminal Code of Canada. Assault, however, is defined under section 265 of the Criminal Code as the intentional application of force, either directly or indirectly, to another person without their consent. Even attempting to assault or threatening to assault another person through your actions can constitute an assault if the other person believes, on reasonable grounds, that you have the ability to assault them.
What if the complainant no longer wishes to press charges?
Domestic assault cases are taken very seriously. In Ontario, there is a “zero tolerance” policy for domestic violence. This means that police and Crown policies and directives mandate them to take an aggressive stance in cases involving domestic violent.
The Crown will prosecute a case when two things are present: a reasonable prospect of conviction, and when it is in the public interest to prosecute. As such, it does not matter whether the complainant wishes to drop the domestic assault charges against you. Once the 911 call has been made, it is up to the police, and then the Crown, to decide whether to continue with charges. The Crown will not drop the charges simply because the complainant does not want to be involved. A criminal defence lawyer Toronto can help guide you through the entire process if you are charged with domestic assault and tirelessly defend your case.
Arrest and bail:
When you are arrested, officers must tell you of your right to counsel. This right allows you to speak to and retain a domestic violence lawyer in Toronto following arrest. It is always a good idea to exercise this right and obtain legal advice before speaking to police.
Although it truly depends on the circumstances of the assault and your own personal circumstances (e.g. if you have a criminal record), since domestic assaults are taken quite seriously by police due to their inherent nature, you will likely be held for bail. You will be brought in front of a judicial official within 24 hours of your arrest. Not only will a domestic assault lawyer tell you what to do and what not to do when interacting with police, they can also start working on your release if you are being held in custody.
A lawyer can speak to the Crown about what is required to secure your release and can propose a bail plan. The plan often involves one or more people called “sureties.” A surety is someone you know who agrees to take responsibility for your release into the community. They pledge to pay a certain amount of money if you do not follow your conditions of release. Being a surety is a huge responsibility, and a domestic assault lawyer in Toronto can explain their role and adequately prepare them for court.
Everyone has a constitutional right to reasonable bail with respect to the amount of money sureties pledge and the conditions imposed on you. Reasonableness also includes the fact that you should not be denied bail without “just cause.”
The Crown may consent to your release based on the plan. If they have concerns about the plan, the nature of the assault, your chance of reoffending, your ability to follow conditions (especially if you have breached bail before), et cetera, they may contest your bail. A contested bail results in a bail hearing (also known as a “show cause” hearing). In line with the principles of reasonable bail, the Crown must “show cause” as to why it is in society’s best interest for you to be detained—although there are certain circumstances that require the accused to demonstrate why their detention is not justified. For example, if you have been previously convicted of a violent offence against an intimate partner, it is now your responsibility to show why you should be released.
There are three grounds of detention upon which you can be denied bail. The Crown will state on which grounds they are seeking detention, which consider:
- Whether you are a flight risk (primary ground);
- Whether you pose a threat to the public (secondary ground); and
- Whether your detention is required to maintain confidence in the administration of justice (for example, due to the seriousness of the allegations and/or the strength of the Crown’s case) (tertiary ground).
The court will look at factors, such as your ties to the community, your personal situation (including the presence of a criminal record), the offence itself, and the strength of a proposed bail plan and adequacy of sureties, when considering these grounds.
As part of considering your release, the court will determine whether conditions should be imposed and what they should be to mitigate concerns, such as ensuring that you attend court and do not commit any further offences. These bail conditions can be stringent and restrictive and may include, but are not limited to:
- Supervision through sureties;
- Curfews or house arrest, including ankle monitoring;
- Refraining from use of drugs and alcohol;
- Mandatory counselling;
- No contact with certain individuals, such as the victim; and/or
- Restrictions on where you can travel.
Conditions for individuals accused of domestic assault can even be even more onerous than usual. The complainant in these cases is not some far-removed person, they are someone you know well and possibly love. You will not be able to speak to them, directly or indirectly. The conditions can even bar you from visiting the family home.
That being said, it is important to remember that when making this consideration, the Crown and the court are bound by the “ladder principle.” This principle means that when it comes to imposing conditions, the least restrictive conditions must be imposed unless the Crown can show that the less restrictive conditions are not appropriate in your case. The Supreme Court of Canada’s 2017 decision in R. v. Antic reinforced this principle. A number of courts, however, seem to have forgotten this obligation. A lawyer can help the court recognize that your detention is not necessary and can remind the court why less strict bail conditions are appropriate.
If you are denied bail, you will remain in custody until your trial or resolution, although it is possible to ask for a bail review at the Superior Court. Obtaining bail can be an uphill battle. Hiring a lawyer maximizes your chances of being released.
It is important to recognize that breaching the terms of your bail conditions can result in further charges against you and the revocation of your bail.
Once a bail hearing is conducted, a lawyer can start preparing a successful defence for your case.
A lawyer will ask the Crown for the disclosure of all relevant evidence against you. The Crown is obligated to disclose evidence about your case to your lawyer, regardless of whether or not that evidence will be used by the Crown in court. This disclosure is a fundamental feature of our criminal justice system. It helps to ensure that you have a fair trial and that you have the information needed to provide a full answer and defence. Having a lawyer by your side can be an advantage, as there are certain items of disclosure that the Crown will only release to counsel. If you do not have a domestic assault lawyer, you may have to make arrangements with the Crown to review this evidence, which can be extremely time-consuming.
In some cases, disclosure can include hundreds (and sometimes thousands) of pages of documents, as well as hours of police interviews and surveillance footage. A lawyer will review these documents and can use them to effectively advocate for you.
A lawyer will then take steps to move the case along. Once disclosure is reviewed, a Crown pre-trial (CPT) is typically scheduled. The CPT allows the defence and the Crown to discuss issues in the case, as well as the Crown’s position. The CPT can be a springboard for further discussions and negotiations with the Crown. Depending on the case and how it proceeds, a judicial pre-trial (JPT) may also take place. The JPT allows a judge to weigh in and provide guidance in a more informal setting.
If you have retained a domestic violence assault lawyer, you will not be present at the CPT or JPT. A lawyer’s expertise and experience can be invaluable at this stage. If you do not retain a lawyer, you most likely will have more difficulty speaking to the Crown, and your JPT will take place in open court instead of the judge’s chambers. You will be responsible for advocating for yourself, which can be an unnecessary stress added to an already challenging experience.
There can be a number of court appearances before a case is set down for trial or a plea is entered. A lawyer can explain the purpose of these appearances and even appear on your behalf, so you have one less thing to worry about.
If the assault is straight indictable or the Crown elects, and the case goes to trial, there will come a time when you will be asked to make an election regarding your mode of trial. You will have the option of being tried by a provincial court judge, a judge alone in the Superior Court, or a judge and jury in the Superior Court. Since aggravated assault carries with it a possible sentence of 14 years in prison, you will also be entitled to a preliminary inquiry for that offence, which is a sort of mini-trial that determines whether there is sufficient evidence to even hold a trial on the charges. If the judge finds that there is not sufficient evidence, then you will be discharged. Making your election and having a preliminary inquiry are strategic decisions. You will no doubt benefit from the support of a lawyer advising and guiding you through this lengthy and complicated process.
Consequences if found guilty:
Domestic assault is considered a very serious offence, and the consequences of a conviction reflect the somber nature of the charge. In terms of jail time, you could be facing anywhere from less than two years all the way up to 14 years, depending on how the Crown proceeds and the type of assault. That being said, the fact that the assault takes place in the domestic context is an aggravating factor when the court is crafting a sentence.
Alternative, more lenient sentences are available for this offence. A lawyer can help you understand the potential consequences of the charge and advocate on your behalf to obtain the best possible outcome in the circumstances.
It’s vital to hire a domestic assault lawyer
Being charged with a criminal offence, such as domestic assault, is a stressful and tolling experience. From the moment you are charged, your life can change. It is important to seek professional advice from a domestic violence lawyer about your rights from the beginning.
A lawyer can also do much more. They can:
- Work to secure your release with the most favourable conditions;
- Help you navigate the criminal justice system;
- Ensure that the Crown meets its disclosure obligations;
- Identify systematic or administrative errors in the criminal process, including Charter rights violations;
- Speak to the Crown on your behalf, negotiate, and advise you of your options;
- Assess all the evidence against you and build a strong defence, so the charges are withdrawn or you are acquitted;
- Gather further evidence to support your version of the events and to question the complainant’s reliability and credibility;
- Obtain a more lenient sentence in the event a guilty plea or conviction is entered.
All criminal cases are complex and fact specific. We have provided general information about how domestic assault cases are handled. Hiring a lawyer provides your best chance at mounting a successful defence. For more information about how we can help, please contact our team.