Domestic assault charges can have serious and wide-ranging consequences. Under the Criminal Code, there is no specific offence for “domestic assault.” However, the fact that an assault happened in a domestic context is an aggravating factor on sentencing and domestic assaults are (often) treated differently by police and by prosecutors than regular assaults.
So what is a “domestic” assault? Domestic assaults refer to assaults that take place in the context of a domestic or intimate relationship between two individuals.
This may include:
- Common-law partners
- And family members
By the Numbers
Because domestic abuse is such a widespread issue throughout Canada that can have a destructive and lasting effect on children and intimate partners, the Crown does not handle domestic allegations lightly. Here are some illuminating statistics regarding police-reported incidents:
- Violence is more common between boyfriends and girlfriends than in spousal relationships.
- 79% of intimate partner violence is against women.
- Women are twice as likely to experience sexual assault in spousal environments.
- Violence against children is nearly twice as high in rural areas as in urban areas.
- A vast majority of children and youth victims live with the person who victimized them.
While these numbers are just a sliver of the overall information available regarding domestic assault, they do affect how police and the Crown respond to domestic-related incidents.
Delving Into Domestic Assault
Like with any criminal case, in a domestic assault case, the Crown prosecutor is responsible for proving the charges against the accused beyond a reasonable doubt.
The nature of any assault charge comes down to proving that the direct or indirect application of force by the accused to the complainant occurred without consent — and the same can be said for a domestic assault case.
Assault is a fairly broad spectrum of intentional actions, including both force and words. These may include:
- Physical attacks or
- Threats to apply force with the ability to carry out. For example, an accused accosting a complainant while holding a weapon (or even imitating one)
It is a full defence in law for contact to have been accidental (i.e. non-intentional).
Explaining the Burden of Proof
If charged with domestic assault, you are still presumed innocent of these charges. At trial, in order to be found guilty of domestic assault, the prosecutor must prove your guilt beyond a reasonable doubt. This is a very high standard. The prosecutor can fail to meet this burden because the prosecution’s evidence is insufficient or because defence evidence undermines the prosecution’s case. When different versions are offered (e.g. the complainant testifies and says something, and the accused chooses to testify and then says something else), judges are not to pick which of the two competing versions they like better. A judge may believe that what the complainant recounts is ‘probably’ what happened, and may even reject what the defendant says altogether, but even this is not enough to support a conviction.
In terms of how domestic trials unfold, typically, the main witness in these cases is the complainant. Whether it’s the husband, wife, girlfriend, or boyfriend of the accused, the complainants will typically have to provide what’s called “viva voce evidence.” In layman’s terms, this simply means testifying in court and under oath or affirmation. Usually, the prosecutor cannot simply rely on the statement the complainant may have given to police months or even years earlier.
If the domestic assault involves physical injuries, a medical professional’s testimony or medical records detailing the severity of damage on the victim’s behalf may be used as evidence in court. Evidence from the police who arrived on the scene, including observations they may have made, may also be used in court. But again, even where the Crown prosecutor can establish the complainant was injured, the Crown must also prove that the accused caused those injuries, and ‘disprove’ any available defences the accused raised in the trial (e.g. self-defence).
What Are Some Common Defences in a Domestic Assault Case?
Oftentimes, particularly where there is no documented evidence of injuries, criminal defence lawyers may advance a denial defence. In other words, they will challenge the Crown’s ability to prove beyond a reasonable doubt that the event alleged even happened. Perhaps the complainant has a motive to lie or fabricate: there may be ongoing family court proceedings, or they may be covering up the fact that they were the assailant. Again, it’s not on the defence to prove that the assault the complainant alleges didn’t happen; it’s the responsibility of the Crown to prove that it did.
At other times, where certain criteria from the Criminal Code and other case law are present, defence lawyers may advance a defence of self-defence.
For many types of assault charges, self-defence is a fairly common defence strategy. However, it needs to meet specific criteria in the Criminal Code to be successful. These criteria require:
- Force was actively being used against you, or you had reasonable grounds to believe it would be used against you in the immediate future.
- The response was for the sole purpose of protecting or defending yourself from a threat or use of force
- The response was reasonable in all the circumstances.
It’s easy to see where the grey areas emerge, especially with the third factor. When assessing “all the circumstances” a court may consider additional factors such as:
- The parties’ history
- Prior events of alleged violence or proven violence
- Both parties’ age, size, gender, and physical capabilities
- The nature of the force being used
- The responding force in proportion to the initial force
- Other opportunities or ways to respond
There are also circumstances where a ‘self-defence’ defence is not realistic on the facts of the case. Maybe the size discrepancy between the accused and the complainant, or the degree of injuries the complainant suffered, are inconsistent with ‘self-defence.’ That said, even where this is the case, you may have a variety of technical and/or even constitutional defences that are not obvious to someone without legal training, which is part of the reason why it’s so important to hire a lawyer.
The Consequence of a Domestic Assault Guilty Finding
As previously mentioned, the aggravated nature of domestic assault charges often impact sentencing proceedings where an accused is found guilty of these charges, which in turn, can lead to more severe outcomes for the accused.
Of course, the penalties for domestic assault vary case by case, and the circumstances surrounding the incident(s), and also the offender who comes before the court, will greatly affect the punishment, the available sentencing options, and what sentence the judge ultimately decides on.
Meanwhile, even if you are found guilty of a domestic assault (whether because you accepted a plea deal, or were found guilty of a trial), capable defence lawyers may be able to spare you any conviction and instead convince the judge to impose a discharge (Provided you comply with the conditions of that discharge, if there are any, and provided you do not commit any further offences for a set period of time, a discharge will mean you are spared any sort of lasting criminal record. Moreover, if discharged, it does not count as a conviction. If your lone run in with the criminal justice system resulted in a discharge, whether a conditional discharge or an absolute discharge, you can honestly tell employers or border agents if they ask that ‘No,’ you’ve never been convicted of a criminal offence). Put simply, there are exceptional results capable defence counsel may be able to obtain for you even if you intend to plead guilty and/or are found guilty after trial, which makes effective legal representation at all stages when you are charged that much more important. Our lawyers can explain to you in more detail what a discharge is, but know that you have options, even when the case against you seems overwhelming.
Do You Need a Domestic Assault Lawyer?
Domestic assault convictions can have a devastating impact on your future. We recommend that anyone facing these charges seek an experienced domestic assault lawyer to protect their rights and explore various options for a favourable result.
*This is not legal advice, and is rather, just cursory legal information. If you are being investigated or have been charged with a domestic related offence, contact us today.