Domestic Assault Lawyer Frequently Asked Questions
October 2023
What is considered domestic assault under Canadian law, and is it different from other forms of assault?
Although domestic assault is not specifically defined in the Criminal Code, it is treated differently than regular assault by the police and the courts. Assault in any form is defined in the criminal code as follows:
A person commits an assault when:
(a) without the consent of another person, he applies force intentionally to that other person, directly or indirectly;
(b) he attempts or threatens, by an act or a gesture, to apply force to another person, if he has, or causes that other person to believe on reasonable grounds that he has, present ability to effect his purpose; or
(c) while openly wearing or carrying a weapon or an imitation thereof, he accosts or impedes another person or begs.
In Canada, domestic assault carries significant weight, and the nature of this offense is regarded as an "aggravating factor" in sentencing for individuals who are convicted. This signifies that the resulting penalty will be more severe compared to those convicted of assault not occurring within a domestic context.
The onus lies on the Crown prosecutor to establish the charges of domestic assault with an obligation to prove them beyond reasonable doubt. This can include:
The complainant had a domestic relationship with the accused, which could encompass familial ties, romantic connections, spousal relationships, or common law partnerships.
The accused, either directly or indirectly, applied force to the complainant without obtaining consent.
The application of force was either intentional, carried out through verbal or physical actions, or involved the threat of force.
It is important to note that domestic abuse extends beyond physical harm. It can encompass a range of behaviors, including threats of assault, manipulation, sexual abuse, and financial exploitation.
Can Charges Be Pressed For Domestic Assault Even If The Victim Doesn't Want To Proceed With Legal Action?
Yes, charges can still be pursued for domestic assault even if the victim is hesitant or unwilling to proceed with legal action. In Canada, the decision to press charges rests with the Crown prosecutor rather than solely with the victim. This approach is rooted in the recognition that domestic assault cases can involve complex power dynamics and emotional complexities that might deter a victim from taking legal action. For instance, imagine a scenario where a victim of domestic assault is fearful of the potential consequences of reporting the incident due to concerns about retaliation or preserving family unity. In such cases, the Crown prosecutor may proceed with charges to uphold the safety and well-being of all parties involved, irrespective of the victim's initial reluctance.
What Legal Consequences Can Someone Face If They Are Charged With Domestic Assault?
When charged with domestic assault, individuals can face a range of legal consequences that can impact various aspects of their lives. These consequences extend beyond potential penalties and fines, potentially affecting relationships, employment opportunities, and immigration status. For instance, consider a situation where someone is charged with domestic assault within a family context. Beyond the legal proceedings, this individual may find strained relationships with family members, leading to emotional distress and potentially isolating them from crucial support networks. Additionally, the stigma attached to domestic assault charges can have repercussions on their reputation within the community. This example highlights that the legal consequences of domestic assault are not confined to the courtroom; they have the potential to permeate multiple spheres of an individual's life, emphasizing the gravity of addressing such charges comprehensively.
How Do Restraining Orders And Protective Orders Work In Domestic Assault Cases
Restraining orders and protective orders play a crucial role in safeguarding individuals involved in domestic assault cases. These court-issued orders are designed to create a legal boundary between the victim and the accused, helping to prevent further instances of harm or intimidation. In practical terms, they can stipulate that the accused must stay a certain distance away from the victim's residence, workplace, and other designated areas. For example, imagine a situation where a victim of domestic assault secures a restraining order against their abuser. This order can act as a shield, offering the victim a sense of physical and emotional security by ensuring that the accused is legally prohibited from approaching them, their home, or their workplace. The strength of restraining orders lies in their enforceability – any breach can result in legal consequences for the accused. This serves as a powerful deterrent, contributing to the overall safety and well-being of those affected by domestic assault.
Does Titan Defence Have Experience In Defending Against Domestic Assault Charges?
Yes, Titan Defence has extensive experience in effectively representing individuals who are confronted with domestic assault charges. Our seasoned legal team is well-versed in the complexities of domestic assault cases and is committed to delivering comprehensive, strategic, and compassionate defense to safeguard the rights and well-being of our clients.
Here are some of our successes.
R v JP
The Client was charged with multiple counts of domestic assault against his wife. He had a long record for drug and weapon related offences. The Client was adamant about his innocence. His wife’s statement to police as well as the police memo book notes and Scene of Crime Photos created a lot of doubt as to her version of events. Under cross-examination, she admitted that she lied to police multiple times during her statement and exaggerated the events. The client was found not guilty on all counts.
R v SH-N
Client was charged with domestic homicide. He had, in a heat of passion, murdered the mother of his child after years of psychological abuse and a final threat of having his only child taken from him. Successfully argued exclusion of the accused post-offence conduct and exclusion of crime scene photos in the format provided for by Crown to forgo the jury seeing the gruesome photographs of the scene. Successfully defended second degree murder to manslaughter, significantly reducing clients' ultimate sentence.
R v ZM
Client had been ordered detained after a 4th set of outstanding charges including an attempted murder, serious drug possession and proceeds of crime, breaches of court orders and a domestic assault. Successfully secured the clients release because of a material change in circumstance: namely weaknesses which arose on the Crown’s cases after thorough review of the cases before the court. These frailties ultimately also lead to a reduction of the attempted murder to an aggravated assault. All other sets of charges were ultimately withdrawn.
Contact Titan Defence Today
At Titan Defence, we understand the gravity of these charges and the impact they can have on your life. Our experienced team is committed to providing you with the guidance, support, and expertise you need to navigate the legal process while prioritizing your well-being. With a track record of success and a deep understanding of the intricacies involved, Titan Defence is here to ensure that your rights are protected and your voice is heard. Don't face these challenges alone – reach out to us today to secure a knowledgeable advocate who will champion your case with dedication and diligence. Your future deserves nothing less than the steadfast commitment of Titan Defence.
Author: Titan LLP
NOTE: THIS IS NOT LEGAL ADVICE AND THIS SHOULD ONLY BE RELIED ON FOR INFORMATIONAL PURPOSES. THIS BLOG IS NO SUBSTITUTE FOR LEGAL ADVICE BY AN ACTUAL LAWYER. THE LAW ALSO DYNAMIC IS CHANGES OFTEN, AND AS A RESULT, THE INFORMATION CONTAINED HEREIN MAY BE OUTDATED AFTER TIME. THIS BLOG MUST NOT BE RELIED ON AS A SUBSTITUTE FOR ACTUAL LEGAL RESEARCH.