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Domestic Assault (Domestic Violence)

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domestic-assault-charge

Domestic Violence/Domestic Assault   s. 266 Criminal Code of Canada

If you are charged with or being investigated for a domestic assault contrary to s. 266 of the Criminal Code or any domestic violence charge you should at the very least seek the advice from an experienced criminal lawyer.  Our initial phone or virtual consultation is free.

We have successfully defended 1000’s of domestic assault or related domestic violence cases over our 39 years of criminal law defence practice. 

What you want and need:

  1.  Immediate attention to your situation;
  2. Experienced counsel;
  3. Accommodating, fair legal fees (including payment plans);
  4. Clear lines of communication;
  5. Understanding lawyers prepared to listen to your side.

In these cases emotions often run high and it is highly recommended that you have experienced counsel present your side of the story.  

Daley, Byers will make a difference by providing expertise, guidance, and will ensure that all your rights are upheld as your case navigates the court process. We are committed to providing the best defence possible, and as fast as possible. Often times we explore a negotiated resolution for the benefit of our clients to avoid the trial process. Ultimately, it is our goal to avoid a criminal record and in the appropriate cases get the parties back together.  When reconciliation is not possible we will refer clients to highly reputable family law lawyers to assist with that process.

We are experienced and well-respected criminal lawyers with decades of experience in the Ontario Courts fighting to preserve and enforce the rights of our clients.

Most Asked Questions:

Can I avoid a criminal record? – short answer – yes; it is possible

We have successfully defended numerous clients charged with domestic assault and avoided a criminal record.  There are two ways that this can be accomplished.

  1. Through negotiations with the Crown;
  2. Successful defence at trial.

Obviously, the preferable process is through negotiations with the Crown as this is faster, cheaper and an ultimate guaranteed result.  This is always our first approach to any domestic violence, domestic assault file. Successful negotiations require the proper preparation – there are many factors to consider.   Should negotiations stall we can always change course and proceed to trial. Note – discussions can continue with the Crown even though the trial date has been set.   

What can I do if the complainant wants to withdraw the charges?

Firstly, the complainant cannot withdraw the charges, only the Crown attorney has the power to drop the charges. The police do not have the power as well.

However, we have persuaded the crown to withdraw charges in numerous cases where the complainant has expressed the position that he/she would like the charges to be withdrawn.  The complainant can write a letter to the Crown attorney expressing their wishes. The Crown will consider what he/she has to say. It is not determinative, but it is of value. Sometimes it is helpful if the complainant seeks independent advice to assist with this process. 

What if the complainant is not “on side”?

Firstly, we must do what we can to discredit the version of facts presented by the complainant. However, discrediting the complainant is not essential.  Many of these cases come down to a “she said”/”he said” contest.  The law in these cases, states that it is extremely difficult for the Crown to establish proof beyond reasonable doubt and the accused is most often found not guilty.

How fast can I get back into my/our home?

The fastest turn-around that we have been able to accomplish was 7 days. The no contact provisions usually contained in the release papers must be amended so that you can communicate or have contact with the complainant.   To move your case quickly, it is necessary to expedite the file from the Police to the Crown. In the normal course, it can take weeks for the Police to forward the file. Recently, we were retained on April 6, 2020 with respect to a domestic violence charge.  We were able to have the charged withdrawn on April 17’th 2020. Our client and his wife are back living together 11 days from the day we were retained.

If I can’t go home, how soon can I communicate with the complainant?

Communication with the complainant is often needed for any number of reasons.  We have, in many cases negotiated a variance to the release papers so as to permit communication between the parties.  In addition, as your lawyer, we are allowed to communicate with the complainant provided we are not delivering a message from you.  We often do this just to determine the complainant’s perspective moving forward.

 What happens if the “victim” (spouse) contacts me?

Often times the victim wishes to make amends and attempts to contact the accused. The accused cannot have any communication (if restricted by bail) regardless of who initiates the conversation.  A bail variation is most often required to permit communication or contact.

What happens if I breach the conditions of my release even if the complainant (spouse) wants me to?

If you are caught in breach of a condition, you will likely be arrested for breach of recognizance, taken to the police station and often held for a bail hearing.  It doesn’t matter if the complainant was complicit to the breach. The range of sentence for breach of recognizance varies. The Crown usually requests a short period of time in jail.  However we have defended numerous case of breach where the charges have been dropped, dismissed or jail has been avoided.

 How much is it going to cost? Are there payment plans?

Legal fees depend upon many factors including:

  1. Complexity of the file
  2. Time put into the file
  3. Whether a trial was conducted
  4. Result achieved

However, we will provide you with a range of legal fees in advance so that there are no surprises.  In addition, we will also accommodate reasonable payment plans (especially in this Covid-19 environment).  Everyone could use the guidance and assistance of a lawyer and it is not fair that due to the Covid -19 situation they cannot afford one.  We will try to work within your financial capabilities.

What is the possible sentence a Court could impose?

The range of sentence is an absolute discharge to jail.  The sentence to be imposed will depend upon a number of factors, including:

  1. The facts supporting the charge.  For example a push is a lot less serious than choking, is there physical injury,  were children involved, etc.
  2. The past criminal record of the accused.
  3. The complainant’s view. – are the parties hoping to reconcile
  4. Age of the accused;
  5. Up front counseling
  6. Circumstances of the accused, – health, employment 

An absolute discharge is a finding of guilt with no probation.

A conditional discharge is a finding of guilt with probation

A suspended sentence is a conviction with probation

A fine could be imposed.

Jail is the most serious consequence.

However, in many cases we have been successful in negotiating a complete withdrawal of the charge.  Sometimes this is done in exchange for a peace-bond. When a peace-bond is entered there is no acknowledgement of criminal or civil responsibility. 

A criminal record can have serious consequences, whether it be in job search, travel or immigration status.

How can I communicate with my children or get access to my children if my partner is not allowing this?

This is a difficult issue and access is often done through an agreed upon 3rd party.  This should be part of the release papers.  If it is not, bail can be varied to accommodate access.  Another method is to vary the bail to stipulate that access to the children is pursuant to a valid Family Court Order.  When the issue of access arises it is sometimes necessary to involve a family law lawyer.  

Can Children’s Aid Society get involved and what are their powers?

In every case of domestic assault or domestic violence where a child is involved as witnesses or as the victim CAS will be called.  CAS has a very strong mandate to ensure the safety and best interests of the child and their powers are extensive. If a child is somehow connected to the offence, it is often in the best interests of the accused to take a parenting program up front.  Normally, but dependent upon circumstances, we will encourage our clients to meet with CAS if they request it. Without such a meeting CAS will likely terminate any contact with the children at all. Again, family law lawyers may need to get involved.

  Do I have to be married for an assault charge to be consider a domestic assault?

The simple answer is no.  Common law spouses, boyfriend/girlfriend, partners,  children as victims, brothers and sisters, all family members are all considered domestic assaults.  We have defended all types. Parent on an adult child, parent on a young child of the family, son or daughter on parent – the list goes on.Every case has its own dynamics must be considered on its own facts.

What should I look for in a lawyer when I am charged with a domestic assault or related domestic violence offence?

Experienced counsel will have defended many domestic assault cases and will have knowledge and developed relationships with the Crown attorneys prosecuting your case.  Often times extensive negotiations lead to the resolution without a trial. Full knowledge of the law and procedure is crucial as every case is unique and the needs of every client are different 

Your lawyer should have a high level of patience and understanding and have an open line of communication.  Clients are anxious and worried. It is important that your lawyer understand your particular needs, and the level of urgency. 

Most importantly, you should feel a level of comfort knowing that the lawyer you have chosen is in your corner and will do everything possible to represent your interests.  Together you will work as a team.

Domestic Assault Cases We’ve Won

The list is far too long and would go on for pages.  The following is a small sampling of cases we have successfully defended.

Due to solicitor/client privilege and privacy interests which we are careful to honour and protect, the information provided below cannot provide names, dates or locations.

Domestic Violence (Assault)

  1. v. M.K. – charges – assault x 2, threatening, unlawful confinement 
    Result: charges withdrawn – client entered a peace-bond and did not admit any of the allegations.
  2. v. S.M. – charges – assault cause bodily harm
    Result: charges withdrawn
  3. v. C.K. – charges – mischief under 5000 and threatening
    Result: charges withdrawn and client entered a section 810 peacebond and did not admit liability – client paid restitution for damages
  4. v. R.S. – charge – simple assault
    Result – charge dismissed after trial – client aquitted
  5. v. D.S. – charge – assault 
    Result – bail variation completed immediately so that our client could have contact and communication with spouse (complainant).
    – Client completed PAR program
    – Charge withdrawn
    – Client entered a common law peace bond

It is our mission to provide you with the best criminal defence we can offer and to obtain the best possible result.

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