We are writing today to layout and hopefully explain in a straight forward and easily understood manner the laws with respect to domestic assault and related domestic charges.
The following list is composed of the most common charges arising out of a domestic relationship.
- Domestic Assault (simple assault);
- Assault cause bodily harm;
- Assault with a weapon;
- Aggravated assault;
- Forcible confinement;
- Threating bodily harm;
- Threatening death;
- Sexual assault.
There are other charges that can fall under the domestic violence but they will be discussed in a later article.
In almost all cases involving domestic issues whether an assault or as minor as mischief to property (as in throwing a cell phone) the person charged is placed on an order (either through a formal bail hearing or an undertaking provided at the police station) containing the following.
- No communication or contact with the complainant (sometimes with exceptions such as “through a mutually agreed 3rd party for the purpose of access to children” or pursuant to a Family Court Order.
- Not to attend within a certain radius of the family home, the place of employment, education or any place the complainant is known to be;
We are often asked – how do I get back home and how long will it take.
We have on numerous occasions arranged variations to the bail provisions prior to the case being completed to get our client’s home. In the normal course, the Crown does not want contact with the complainant due to possible influence on their witness (the complainant). It does not matter that the complainant wants you to come home. In fact this happens more often than not. In many cases, the complainant would like the charges dropped and for their partner to come home. However, put simply – this decision is for the Crown attorney – not the complainant. Once a charge is laid, only the Crown has the power to decide whether it should be withdrawn or not. The Crown will listen to the complainant, but will not necessarily follow the complainants wishes
To begin with lets review the charge of domestic assault (simple assault contrary to s. 266 of the Criminal Code.
Simple assault – a non-consensual touching by one person on another. We have recently been retained by an individual who gave his a wife a kiss in the midst of an argument – charged with domestic assault
Defences: self defence is the most common defence in these cases. Many times we deal with cases where the complainant in fact instigated the altercation andour client simply used reasonable force to defend himself/herself. Provocation is not a defence but in some circumstances can be a mitigating factor.
Resolution: If our client is not guilty , we either negotiate withdrawal of the charge (sometimes with a peace-bond which does not involve an admission of the facts to support the charge) or we go to trial. If our client has committed some wrongdoing we still will attempt to negotiate a peace-bond. If the Crown does not agree with a peace-bond resolution, we will then seek instructions fromour client as to whether he/she wishes to go to trial or would like us to try to negotiate an acceptable resolution (sometimes this involves aplea of guilt for a conditional discharge – no conviction is registered). In many cases, our
clients instruct us to go to trial to see what the Crown can prove. Remember an accused is innocent until proven guilty. We do not have toprove innocence. It is not unusual in these cases for the Crown to discover that they do not have a cooperative witness and the charges are ultimately dismissed.
The Charge of Mischief to private property
There are 2 charges of mischief to private property. The first is mischief under $5000.00 and the 2nd is mischief over $5000.00. We have defended both charges of mischief over and mischief under but in the context of domestic violence allegations, the most common is mischief under $5000.00. The typical case is where in frustration our client has thrown something to the floor – for example a cell phone; or has knocked something off a desk like a laptop. Other common mischief under $5000.00 cases involve damaged doors, windows and cars.
If there are no other aggravating circumstances, these cases often resolve by way of restitution and the taking of an anger management program (PAR). The PAR program is the program of choice in the Crown attorney’s office and the program that the Crown often requests as a pre-requisite to a withdrawal of the charge. It does require a Court order for admission.
The remaining charges listed above will be discussed in a follow up article. Sexual assault (often time historical sexual assault) allegations have become more prevalent when domestic relationships deteriorate. These cases require an entirely different perspective and approach because of the relationship between husband and spouse. We will delve into more detail next time.