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Domestic Assault | Domestic Criminal Charges

Domestic Assault | Domestic Criminal Charges

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.

  1. Domestic Assault (simple assault);
  2. Assault cause bodily harm;
  3. Assault with a weapon;
  4. Aggravated assault;
  5. Forcible confinement;
  6. Mischief; 
  7. Threating bodily harm;
  8. Threatening death;
  9. 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.

  1. 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.
  2.  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 Once a charge is laid, only the Crown has the power to decide whether it should be withdrawn or not.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.

Insight into domestic assault

Insight into domestic assault

So it looks like things got a little overheated. Maybe this is not the first time sparks flew and ignited an emotional explosion and someone got assaulted. An assault occurs whenever you use force on another person without their consent or valid justification. So an assault may be a simple push or throwing a water bottle at someone. An assault occurring between people in a relationship is called a domestic assault and is taken more seriously because of the nature of your close relationship and the abuse of a loved one.
Maybe your partner is injured. Maybe you both are. Perhaps the neighbours heard the yelling and crying and called police. Whatever the reason is behind you being put in handcuffs one thing is for certain. The physical pain and bruising heals quickly— but the psychological trauma, the loss of trust and loss of respect in your family will likely take a lot longer. Also, the criminal charges stemming from the incident may result in a criminal record that will loom over you like a dark cloud. That cloud may rain when you apply for jobs, in an already very competitive labour market where getting jobs is already difficult it as it is, never mind with a criminal record. Also Homeland Security may decide that you cannot enter the U.S.A..

Making Bail

Whenever someone is charged with domestic assault, more often than not he/she is put into jail overnight and is held until they have a bail hearing where they will be given an opportunity to explain why they should be let free until the day their charges will be prosecuted. In almost all cases the court imposes a residential surety (you must reside with your surety) with conditions on release that prohibit or limit contact with the complainant and witnesses. The surety is required to help ensure the conditions are followed. Both you and the surety are on the hook for the amount imposed by the court. In most cases, the cash is not necessary; the surety release is without a cash deposit and is in the form of a bond. If the conditions of the release are breached the Crown will seek to estreat the bail and both you and the surety are on the hook for the amount of the bond.
Bail is never a guarantee. It will depend on the circumstances of the case, any prior record or outstanding allegations and the quality of the surety and plan of release proposed.

The Trial and the Criminal Sentence

Aside from the stigma of being labeled a criminal by your friends and family, you will also be subject to a criminal sentence upon being convicted of the offence. Domestic assault cases are considered hybrid offences which means the crown can proceed by way of summary conviction (less serious) or by way of indictment (more serious). If the prosecution proceeds by summary conviction the maximum sentence for a first timer is either a fine of $5,000 or six months in jail—or both.
You will likely have conditions attached to your release from prison.

Some examples are
1. Follow the household rules of your surety (which can include counseling)
2. Curfew
3. No consumption of alcohol or drugs
4. Non communication with the complainant and witnesses
5. Non attendance within a radius of the home, place of work or any place you know the complainant to be, regardless of whether or not it is your home. – Sometimes you will be allowed 1 attendance with police to collect your personal effects.
If you breach these conditions you will have committed a separate and distinct criminal offence. In fact, breaching these conditions is actually the most common criminal offence in Canada so just because you’re out of jail, doesn’t exactly mean you are out of the woods just yet.

Peace Bond

A peace bond is a promise to keep the peace and be of good behavior and can include other conditions, the most common of which is not to communicate directly or indirectly with the complainant without her prior written revocable consent. The bond is always in a prescribed amount imposed by the court most often without actual deposit. These funds are subject to forfeiture if any of the terms of the peace bond are breached. In addition the breach of peace bond is also a criminal offence. In minor assault cases the prosecution may drop the assault charge if the accused accepts to make a peace bond. The important aspect of a peace bond aside from avoiding a criminal record is that you do not have to admit the allegations made by the complainant. You simply chose not to show cause by a peace bond should not be imposed. This is sometimes available in domestic assault cases but are not a given.

Are you a victim of assault?

If you are a victim of assault and you call the police for help they will in almost all cases press a criminal charge. You do not control the process. Even if you do not want your partner charged, the police must act if they have reasonable and probable grounds to believe an offence has been committed. As a complainant you are not required to provide any statements to the police, it is simply your choice whether you wish to or not. Afterwards you do not determine if a charge is to be withdrawn. In fact, in almost all cases where the complainant asks that the charges be withdrawn, the Crown attorney proceeds regardless.
It is most likely that you will be subpoenaed by the police to attend court to testify. If you fail to show up in court to testify after being served with a subpoena you can be arrested. If you show up and recant your story, your partner may still be convicted if the judge allows into evidence a pre-recorded video or audio statement, such as the 911 call, where you say that he hit you. In addition, depending on circumstances, you could face charges of perjury, obstruct justice or public mischief. Regardless of whether you are charged with assault or a victim of assault, make sure that you get professional help. This can be a very emotional time and you need logic, not emotion, to fix the problem. Sparks already flew and explosion already erupted. Cool off the flames.

Speak with top rated criminal defence lawyers

Call to schedule an interview with our lawyers. We can hear you out in our offices and it won’t get back to your partner unless you press charges. We offer complete and strict confidence, something your friends may promise you. But we all know how people love to talk about other peoples’ problems. Help us help you make the next crucial step with your relationship.

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